TMI Blog2017 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... t services and accordingly the credit was allowed - the appellant is not required to reverse the Cenvat credit attributed to the trading activity of passenger cars. Extended period of limitation - Held that: - in the absence of ingredients such as fraud, collusion, suppression of fact, etc., with intent to evade payment of duty, the penalty is not imposable under Section 78 - Considering this finding which equally applicable in case of invocation of extended period in terms of proviso to Section 73, the demand is not sustainable on the ground of time-bar also. Impugned order not sustainable on merit as well as on limitation - appeal allowed - decided in favor of appellant. - E/1560/11 - A/85505/17/SMB - Dated:- 20-1-2017 - Mr Rames ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trading activity was defined as exempted service only w.e.f. 1-4-2011 therefore in terms of Rule 6 the credit is not available on the input services used in the trading activity, therefore prior to amendment on 1-4-2011 there is no provisions to deny the credit used in the manufacture as well as for trading activity. He further submits that activity of the appellant as regard the manufacturing and trading activity is well known to the department as department carried out extensive audit of entire books and accounts and excise record therefore there is no suppression of facts on the part of the appellant accordingly demand is time bar which pertains to the period 2006-07 to 2009-10 whereas show cause notice was issued on 30-7-2010, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een considered by this Tribunal in various judgments. In case of Kundan Cars Pvt Ltd (supra) this tribunal after considering all the judgment on this issue, has passed following order: 5. I have carefully considered the submissions made by? both the sides. The fact of the case is not under dispute that the appellant is engaged in providing taxable services such as Business Auxiliary Services and Servicing of Motor Vehicles on which the service tax is paid and at the same time the appellant is engaged in the trading activity of the cars on which no service tax is paid. The charge of the Revenue is that they are availing Cenvat Credit in respect of common services which are used for taxable services as well as for trading activity. I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt passed the following order : This appeal is preferred against the judgment and order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore, dated 12-3-2009 and sought to be admitted on the following suggested question of law : Whether CESTAT is correct in holding that the GTA service utilized by the assessee as recipient, is input service for providing the output service i.e., authorized service station The aforesaid question amply suggests that there is no element of law involved on the factual aspect. The learned Tribunal has dealt with this aspect in the manner as follows : In our view, unless the vehicles are received and sold, there would not be any servicing of the same. Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise 2014 (36) S.T.R. 704 (Tri.-Mumbai) , I find that this decision is given by the Division Bench of this Tribunal where as the Division Bench decision in the case of Shariff Motors (supra) has been considered by the Hon ble High Court and upheld the same. In this position the Mercedes Benz (supra) decision of this Tribunal stands distinguished. As regards limitation, I find that the Ld. Commissioner (Appeals) while dropping the penalty under Section 78 given the following finding : From the decisions of various higher appellate authorities in the matter, it is clear that there was scope for varying interpretations during the period prior to 1-4-2011 and this appears to be the reason for introduction of Explanation under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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