TMI Blog2017 (12) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent ORDER Order-in-appeal No.P-I/MMD/161/2012 dated 24 th August 2012 of Commissioner of Central Excise (Appeals), Pune - I is assailed in this appeal of M/s Emitec Emission Control Technologies (I) Pvt Ltd for upholding the order of the original authority who had disallowed CENVAT credit of ₹ 2,25,422/- for the period from September 2010 to March 2011, along with interest thereon, and imposed penalty of like amount under rule 15(2) of CENVAT Credit Rules, 2004. The dispute pertains to availment of CENVAT credit on input services that were allegedly utilised in common for both producing excisable goods and rendering exempted service by the appellant. It would appear that the appellant is also in the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 are substantive in nature even though the amendments have been introduced in the form of explanation. The explanation starts with the words For removal of doubts . The same cannot be applied retrospectively, particularly, the said view is also supported by the fact that the said Notification was issued on 1-3-2011 and was to come into force only from 1-4-2011. Moreover, Rules are delegated legislation and Government has No power to amend the Rule with retrospective effect. This can be done only by an Act. We agree with ld. Sr. Advocate s contentions in this regard. We also find support for the same from the judgment of the Hon ble Supreme Court in the case of UOI v. Martin Lottery Agencies Ltd. reported in 2009 (14) S.T.R. 593 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, whether called Suspense account or by any other name, in the books of account of a person liable to pay service tax. 6. The statutory provision for demanding service tax in respect of transactions between associated enterprises, immediately upon amendment, has been introduced only w.e.f. 10-5-2008. Prior to 10-5-2008, neither the Finance Act, 1994 nor the Service Tax Rules, 1994 contain any provision enabling demand of service tax prior to the realization of taxable services, in any circumstances. This being so, it is not legally permissible to give retrospective effect to the Explanation inserted in Rule 6 of the Service Tax Rules. The Legislative intention behind the amendments was explained by the Board as for plugging avoidanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, as the Tribunal held in that case that clarificatory amendments are retrospective only when they did not materially change, the existing provisions, while in the instant case, there was No provision either in Section 67 of the Finance Act or Rule 6 of the Service Tax Rules to suggest that in the case of transactions between associated enterprises, service tax has to be paid immediately on entry of the transaction in the books of account . Similar view has been taken by this Tribunal in the case of Sitara Exports Ltd. v. Commr. of Central Excise, Vapi reported in 2010 (255) ELT 117 (Tri.-Ahd.). 15. We find considerable force in the arguments of ld. Senior Advocate for the appellant that changes made by Explanation are substa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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