TMI Blog2015 (10) TMI 2544X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding 20% of the amount of service tax payable on output service”. It is not in dispute that the appellant had not paid 20% amount from its cenvat account towards the taxable output services. The case of the Department is that on monthly basis, this 20% calculation has to be done and the same should be paid from the cenvat account; and if any amount is paid over and above 20% during the particular month/period, the same is not in conformity with the statutory provisions, and thus, the assessee is required to pay the cenvat credit. There are no specific restrictions or prohibitions contained in Rule 6 of the Cenvat Rules, providing for reversal of cenvat credit on monthly/periodic basis. Rather, as per the statutory mandates, the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt avails cenvat credit of service tax paid on the input services used in the provision of both taxable as well as exempted services. As per Rule 6 (3) (c) of the Cenvat Credit Rules, 2004, the assessee is liable to pay 20 per cent of service tax towards the output service by utilizing the cenvat credit. In the present case, in compliance to the requirement of Rule 6 (3) (c) of the Rules, the appellant had discharged the service tax liability towards the provision of taxable service. However, the Department objected to payment of service tax on the ground that during particular month, excess cenvat credit, over and above the prescribed limit of 20% has been utilized by the appellant. Since the statutory provisions were not complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Counsel for both sides and examined the case records. 5. Obligation of the service provider, providing taxable as well as exempted service is contained in Rule 6 of the Cenvat Credit Rules, 2004. Sub-rule (1) of the said rule restricts taking of cenvat credit, in the eventuality, where the service provider exclusively provides the exempted service. Where the service provider provides for both taxable as well as exempted service, sub-rule (2) of the said rules provides for maintenance of separate accounts. In the case, where no separate accounts have been maintained, clause (c) of sub rule (3) mandates that the provider of output service shall utilize credit only to the extent of an amount not exceeding 20% of the amount of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken place only in January 2005, March 2005 and May 2005 and this excess utilized credit cannot be demanded as Rule 6(3)(c) is silent with regard to the period during which the 20% credit shall be utilized and in this regard reliance has been placed on Tribunal s judgment in case of Vijayanand Roadlines Ltd. v. CCE, Belgaum reported in 2007 (7) S.T.R. 219 (Tri.-Bang.), wherein the Tribunal with reference to Rule 3(5) of the Service Tax Credit Rules, 2002, which is pari materia with Rule 6(3)(c) of the Cenvat Credit Rules, 2004, has held that the utilization is not restricted to monthly or quarterly basis and that it can be utilized at any time. We agree with this plea. In the case of Vijayanand Roadlines Ltd. (supra) the Appellant durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
