TMI Blog2017 (4) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority - matter remanded to the adjudicating authority for passing a fresh de novo adjudication order - appeal allowed by way of remand. - ST/88162 and 87945/2013 - Final Order Nos. A/93191-93192/2016-WZB/STB and Stay Order No. S/93190/2016-STB - Dated:- 17-10-2016 - Shri Ramesh Nair, Member (J) and C.J. Mathew, Member (T) Shri Shailesh P. Sheth, , for the Assessee. Shri D. Nagvenkar, Addl. Commr. (AR), for the Department. ORDER [Order per : Ramesh Nair, Member (J)]. - The appellant is engaged in providing services viz. Storage Warehousing Service, Cargo Handling Service and Goods Transport Service. The appellant also providing certain services on which no service tax is paid due to the reason either it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence on limitation properly and also not given any finding in this regard. As regard the merit of the case, the issue relates to excess utilization of Cenvat credit over and above 20%, he submits that there is no bar in availment of Cenvat credit. However, the bar is only for utilization of the credit over and above the 20% of the credit availed. In this case even though there is a over utilization in a particular month then there will be a short utilization in the subsequent month due to this reason the payment of duty which is required to be paid from PLA will stand defer for a month or subsequent month. In this situation, at the most there may be a liability of interest but excess utilization cannot be treated as duty demand. In this sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides. As regard the issue of excess utilization of Cenvat over and above 20% which is provided under Rule 6(3)(c) of Cenvat Credit Rules. According to which, in case where the assessee provides dutiable and exempted services, the assessee is required to utilize only 20% of the total tax liability from Cenvat credit. From the said provision it is clear that the bar if only for utilization of the credit in a particular month over and above 20% of the tax liability. However there is no bar in availment of the credit. We find that even if the appellant utilize excess credit in a particular month/period there wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be ascertained whether the appellant have correctly quantified foregone Cenvat credit attributed to the exempted services and was not availed however this fact has not been verified by the adjudicating authority. We have also observed that the submission of the ld. Counsel as well as submission made in the appeal memorandum that the adjudicating authority has not dealt with the issue of invocation of extended period in proper perspective. Therefore the entire case also needs to be reconsidered on the issue of limitation also. In view of the above discussion, we set aside the impugned order and remand the matter to the adjudicating authority for passing a fresh de novo adjudication order, keeping in mind our above observation. Needless t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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