TMI Blog2017 (2) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 - Dated:- 4-1-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Sumanthy Advocate for the Appellant. Sh. Nagraj Naik, Deputy Commissioner (AR) for the Respondent. [Order per: Sulekha Beevi, C.S.] 1. The short issue for consideration in the appeal is whether the appellant is liable to pay the interest and penalty for the irregularly availed credit, which was reversed prior to utilisation according to the appellant. 2. The appellants are engaged in providing taxable services and are registered with the service tax department. They are availing the facility of CENVAT Credit on capital goods and input services. During the period 2011-12 the appellants had availed credit of ₹ 13,26,136/- on rent-a-cab serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade on 31.01.2013. He relied upon the following decisions: (i) CCE Vs Strategic Engineering Pvt Ltd., [2012-TlOL-466-HC-MAD-CX] (ii) CE, Bangalore Vs Bill Forge Pvt Ltd., [2012 (279) E.L.T. 209 (Kar)] (iii) B. Girijapathi Reddy Co Vs CCE ST, Guntur in Final Order No. A/30569-30570/2015 dated 29.06.2016. 4. On behalf of the department, the Ld. AR Sh. Nagraj Naik reiterated the findings in the impugned order. He submitted that the appellant did not have sufficient credit balance under the category of input service during the relevant time when the credit was reversed and therefore the levy of interest and penalty is legal and proper. 5. I have heard the rival submissions. The issue whether assessee is liable to pay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged credit remains unutilised. The discussion in this regard in para 13 of the Division Bench of the Tribunal in the case of Pipavav Shipyard Ltd vs CCE [2016 (41) STR 151 (Tri-Ahmd)] is worth reproducing. 13. The Larger Bench of the Tribunal in the case of Commissioner of Customs C.Ex., Meerut-I v. Modi Rubber Ltd. - 2000 (119) E.L.T. 197 (Tri.-LB) , held that the declaration filed by the assessee in terms of Rule 57Q of Central Excise Rules, 1944 is sufficient for the purpose of extending credit on lubricants under Rule 57A of the said Rules. In the case of Commissioner of Central Excise, Coimbatore v. Lakshmi Technology Engineering Indus. Ltd. - 2011 (23) S.T.R. 265 (Tri.-Chennai) , the Tribunal held that the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cess on output service. There is no restriction for utilisation of common input credit availed on the inputs and also on input service for payment of excise duty or service tax. Hence, we do not find any reason to deny the input service credit on the ground that it was shown in the ER-1 return. 6. In the case of Jyothi Structures Ltd., Vs CCE, Nasik [2012 (285) ELT 356 (Tri-Mumbai)] the Tribunal emphasized that there is no provision in CENVAT Credit Rules, 2004 for segregation of input services and there need not be one to one co-relation of CENVAT Credit availed on input services towards payment of output services. 6. It is not disputed that the appellant has availed credit which is available to them and there is no provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any) is taken; (b) credit of duty paid on inputs and capital goods procured locally from the domestic market is taken; and (c) credit of service tax paid on services utilised taken. 7.2 Rule 3(4) provide for manner of utilization of the credit. 8. Therefore having sufficient balance in the CENVAT account in any of the category namely input, capital goods or input services would suffice for the purpose of considering whether the appellant had reversed the credit before utilisation. In view thereof, I am convinced that the set of facts would attract the application of the decision laid in Bill Forge Pvt Ltd., case and also followed in various decisions of the other High Courts as relied by appellant. In view thereof, I find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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