TMI Blog2015 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... d findings of the OIO, there is no dispute on the fact that respondents are carrying out both trading activity and taxable service under BAS as commission agents. The Division Bench of the Tribunal in the case of Mercedes Benz India Pvt. Ltd. Vs CCE Pune-I (2014 (4) TMI 12 - CESTAT MUMBAI) has clearly held that entire credit on trading activity is not eligible and only proportionate credit with reference to turnover is eligible. - respondents are not eligible for the entire credit availed on the common input services. Since the department rightly demanded the excess credit of ₹ 6,78,459/- which is in excess of 20% of the total service tax payable, the respondents paid the excess amount and they are not eligible to take re-credit in ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(1) of Cenvat Credit Rules, 2004. On appeal filed by the respondents, the Commissioner (Appeals), has allowed their appeal and set aside the impugned order with consequential relief. The Revenue filed the present appeal against the impugned order. 2. Heard both sides. 3. Ld. AR reiterated the grounds of appeal and the findings of the OIO. Since the respondents are carrying out both taxable service under BAS and trading of the goods, they are not eligible to avail credit as common input services and they have not maintained separate accounts and they are entitled only to 20% of the total service tax payable as credit on common input services. The amount paid by the respondents is only credit amount in excess of 20% which was alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was 16.11.2009. Therefore, the appeal has been filed within 3 months from the date of receipt of the order. The preliminary objection raised by consultant is overruled. 7. On merits of the case, I find that Revenue is aggrieved on the impugned order of Commissioner (Appeal) where in the OIO was set aside with consequential relief. The Lower Appellate Authority held that respondents are eligible for full credit on the common input services used for trading as well as taxable service. The revenue's contention is that LAA has also allowed credit on various input services as there is no nexus on the output service rendered by the respondent which is a commission agent service. The other contentions by the Revenue that respondents are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in relation to output service rendered by the respondent. The Hon'ble High Court of Gujarat in the case of CCE Vs Cadila Healthcare Ltd. (supra) has allowed the credit of various services viz. Testing and Analysis, C F services, repair and maintenance services etc. The ratio of the said judgement is squarely applicable to the present case. Accordingly, the respondents are eligible for the input credit of ₹ 7,01,979/-. Therefore, I do not find any infirmity in the order of Commissioner (Appeals) to the extent of allowing credit on input services. 10. As regards the excess credit of ₹ 6,78,459/- availed by the respondents on the common input services, used for both output service as well as for trading activity, I find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d explanation only provides the procedure for computation and since this change is procedural in nature it will have a retrospective effect. Ld. Sr. Advocate also argued that in case of traded goods, the value addition by the appellant is only the difference between the sale price and the purchase price of the goods which is not so in the case of manufactured goods. On a query by the Bench that since ld. Sr. Advocate is arguing that only the value addition should be taken in respect of the traded goods, then why the same criteria should not be applied in the case of manufactured goods i.e. take the differential amount between the selling price and cost of various raw materials. Ld. Sr. Advocate stated that in case of manufactured goods so m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods, whether we should take the turner of the manufactured goods and traded goods for apportioning the credit of the service tax on input services or some other criteria should be followed. We, therefore, do not find any applicability whatsoever of the said judgment in the facts and circumstances of the present case. Another judgment quoted by the ld. Sr. Advocate is the judgment of the Hon ble Supreme Court in the case of Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup Sons reported in (1994) 6 SCC 623. In this case, wealth-tax was applicable on various assets. A new rule was inserted with effect from 1-4-1979 to determine the market value of properties. The question was whether the new inserted rule can be used for determini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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