2016 (3) TMI 809

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..... tant Commissioner of Central Excise, Service Tax Cell, Pune I, by reducing the tax liability to Rs. 2,34,788/- with interest thereon after granting benefit of Rule 6(5) of CENVAT Credit Rules, 2004 to the extent of Rs. 1,10,005/- and setting aside the penalty imposed under Rule 15(3) read with section 78 of Finance Act, 1994. 2. The appellant is registered as provider of various services, besides trading in packaged software, and the issue in dispute pertains to the period from December 2007 to March 2011. It is alleged that the appellant availed credit on all 'inputs' and 'input services' used by them without exception during the relevant period even though some portion of these input services were attributable to trading activity .....

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..... t that 'trading' is not an output service. Therefore, the implication of the context is whether the services used in common for providing 'output service' and 'trading' can be availed in full by the appellant for discharge of tax liability on provision of 'output service'. 6. The sole contention of appellant is that 'trading' is not an 'exempted service' because it did not qualify as 'service' in the first place and the apportionment of credit was mandated only for 'exempted service.' The amendment effected in April 2011 to deem 'trading' as 'exempted service' was claimed to be prospective and also impliedly indicative of legislative intent to keep trading out of the definition of service till then. .....

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..... umbai )]. 9. Having perused the various decisions, it is possible to conclude that most of these do not shed light on the manner in which the present dispute may be resolved. The decision in re Indian National Shipowners' Association relates to revelation of legislative intent to tax specific services only from the date of incorporation in section 65 of Finance Act, 1994. Others deal with the retrospective application of amendments in subordinate legislation that do not appear to have been contemplated in the main legislation; in particular, the retrospective application of insertions through Explanations in Rules or notifications. 10. The decision of the Tribunal in re Mercedes Benz India Pvt Ltd is in almost identical circumstances .....

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