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2016 (3) TMI 809 - CESTAT MUMBAI

2016 (3) TMI 809 - CESTAT MUMBAI - 2016 (43) S.T.R. 103 (Tri. - Mumbai) - Availment of Cenvat credit - Tax paid on services used in common for ‘output services' and trading - Held that:- in view of the decision of Tribunal in the case of Mercedes Benz India Pvt Ltd v Commissioner of Central Excise Pune - I [2014 (4) TMI 12 - CESTAT MUMBAI], the credit that may be availed of the tax paid on services used in common for ‘output services' and trading during the relevant period is to be so apportione .....

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eal No. PUN-EXCUS-001-APP-13-14-15 dated 23 rd April, 2014 of Commissioner of Central Excise (Appeals), Pune I, is before the Tribunal seeking the quashing of the impugned order. The first appellate authority had modified the order of the Assistant Commissioner of Central Excise, Service Tax Cell, Pune I, by reducing the tax liability to ₹ 2,34,788/- with interest thereon after granting benefit of Rule 6(5) of CENVAT Credit Rules, 2004 to the extent of ₹ 1,10,005/- and setting aside .....

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which is an exempted service' which is contrary to the CENVAT Credit Rules, 2004. 3. The appellant had, at all the preceding stages, questioned the propriety of denial of the disputed CENVAT Credit claiming that trading' is not covered by the definition of exempted goods or exempted service' and hence the restrictive provision relating to availment of credit was not applicable to them. The computation of the ineligible credit was also challenged along with the rejection of reversal o .....

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2008(232) ELT 182 (Commr App] , Chetan Traders v Commissioner of Central Excise, Jaipur [2009 (13) STR 419 (Tri-Del)] and Orion Appliances Ltd v Commissioner of Service Tax, Ahmedabad [2010 (19) STR 205 (Tri-Ahd)] respectively. 5. The dispute here is about whether trading' is an exempted service'. However, that dispute has arisen in the context of services used by the appellant for rendering output service' as well as exempted service'. Both sides are in agreement that trading .....

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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. 7. Admittedly, the appellant is in the business of providing different services in addition to trading in packaged software . It is pointed out by the appellant, the activity of trading has been deemed as an exempted service' by incorporation in Rule 2(e) of CENVAT Credit R .....

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Counsel for appellant also placed reliance on the decision of the Tribunal in Mahindra & Mahindra Ltd. v. Commissioner of Central Excise, Mumbai [2007(211) ELT 481 (Tri-Mumbai)] to contend that, as held in relation to insertion of Explanation III (as it then was) to Rule 6(3) of CENVAT Credit Rules, 2004 for denial of credit of duty/tax paid on inputs/input services used exclusively for manufacture of exempt goods/providing of exempt services, the date of effect of the amendment in the amen .....

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t 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 and has examined most of the cit .....

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