TMI Blog2008 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... Ravindran, Member (Judicial) [Order Per: Shri M.V.Ravindran, Member (Judicial)]- 1. This appeal is filed by the revenue against the order-in-appeal No.Goa/Cex/MP/101/ST/2007 dated 12/09/2007. 2. Heard both sides and perused the records. 3. The revenue is aggrieved by the order of the Commissioner (Appeals) on the ground that the Commissioner (Appeals) has not considered the provisions of Cenvat Credit Rules 6 (3) and 6 (5). It is the submission of the Ld. SDR that the respondent in this case has not maintained separate records for utilization of the credit taken and the services received by them for exempted and for the non-exempted categories. He submits that the provisions of Rule 6 (3) (c) will be applicable and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee could only take the credit and was not allowed to utilize the same. Examining the first argument and studying the relevant sections, it is seen that in the present case Rule 6 (3) is not the relevant rule to be applied since it has been admitted by the department also that the services on which the credit had been taken are amongst 17 services mentioned under Rule 6 (5). Once I come to Rule 6 (5) the important portion here is the word not withstanding . The very use of this word means that Rule 6 (3) is not applicable for the input services mentioned under Rule 6 (5). In fact in para 9, the adjudicating authority himself has said that it is clear that a service provider, who provides taxable and exempted services shall be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to both taken and utilized . 6. It can be seen from the above reproduced portion of the order that the Commissioner (Appeals) has correctly come to the conclusion that credit of the service tax paid on the services as enumerated under Rule 6 (5) of the Cenvat Credit Rules 2004 are to be allowed. It can be noticed that Rule 6 (5) starts with a non-obstante clause notwithstanding , which would indicate that the provisions of Rule 6 (3) are not applicable for the provisions of Rule 6 (5) of Cenvat Credit Rules, 2004. If it is undisputed that the service tax credit availed is on the service as mentioned in Rule 6 (5), the credit of the entire/whole amount of service tax has to be allowed to the respondent. 7. It was s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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