TMI Blog2018 (3) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per: SS GARG Appeal No.E/26522/2013 has been filed by the assessee against impugned order No.34-37/2013 dt 21/02/2013 passed by the Commissioner(Appeals). The Department has also filed two appeals against the impugned orders No.34-37/2013 dt. 21/03/2013 and No.60-61/2013 dt. 07/03/2013. The issue involved in party's appeal is the demand of reversal of service credit taken on management consultancy service pertaining to the unit in the location of area based exemption. The impugned order confirmed the demand vide OIA No.34-37/2013 dt. 21/02/2013. This OIA disposed of 4 appeals pertaining to two Orders-in Original No.137 and 138/2011 both dt 19/12/2011 (against which both party and Department filed appeals before the Commissioner(Appeals). Further on the similar issue, the Commissioner(Appeals) vide OIA No.60-61/2013 dt. 07/03/2013 disposed of the appeal filed by the party and the Department against Order-in-Original No.136/201 1 dt. 19/12/2011. Against the said Order-in-Appeal, both the Department and the party have filed the following appeals before the Tribunal. Sl. No. Appeal No. OIA Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sively engaged in the manufacture of exempted goods or providing of exempted services shall not be distributed. On these allegation, show-cause notices were issued and after following the due process, Order-in-original dt. 19/12/2011 was passed Aggrieved by the said order, assessee as well as the Department filed appeal before the Commissioner(Appeals) who disposed of all the appeals by the impugned order. 3. Heard both the parties and peruse records. 4. Learned consultant for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without properly considering the submissions of the appellant. He further submitted that Rule 7(b) of the CENVAT Credit Rules, 2004 would apply only if the services are exclusively utilized in a unit engaged in the manufacture of exempted goods. The services received by the Head Office are common services which are utilized in all the factories. They are not services which are exclusively utilized at Rudrapur and therefore he submitted that Rule 7(b) is not attracted to the facts of the case. He further submitted that there is no prohibition for an ISD to distribute credit of service tax paid on commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 29/10/2015. She further submitted that the impugned order relates to the appeals which have already been considered and Final orders have already been passed. She also submitted that the decision of the Tribunal disposing of two appeals vide order dt. 29/10/2015 have not been appealed against by the assessee and it has attained finality. She also submitted that in the present appeals, there is nothing new for this Tribunal to be considered since these appeals also against the same impugned order already decided by the Hon'ble Tribunal vide its order dt. 29/10/2015. She further submitted that the two Departmental appeals related to non-demand of the demand on the plant and non-imposition of penalty on the plant whereas the impugned order has confirmed demand against ISD. She further prayed that the present appeals should also be decided in the light of the Final orders earlier passed by the Tribunal dt. 29/10/2015. 7. After considering the submissions of both the parties and perusal of material on record as well as the judgment of this Tribunal in the appellant's own case whereby the Tribunal vide order dt. 29/10/2015 disposed of two appeals against the same impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order of the lower authorities to that extent, disallowing proportionate credit is upheld. 7. As regards the penalty, learned Chartered Accountant Shri Ramasubramanian has drawn my attention to the provisions of Rule 15 of Cenvat Credit Rules under which penalty stands imposed. The period involved in the present appeals is April, 2006 to April. The penalties stand imposed in terms of Ru e 15(3) of the Cenvat Credit Rules. By drawing my attention to the said Rule, learned advocate submits that prior to 17-2-2010, the Rule read as under :- Confiscation and penalty. - (l) If any person, takes Cenvat credit in respect of input or capital goods wrongly or in contravention of any of the provisions of these rules in respect of any input or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or two thousand rupees, whichever is greater. (2) In a case, where the Cenvat credit in respect of input or capital goods has been taken or utilised wrongly on account of fraud, wilful misstatement, collusion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods or Input services has been taken or utilised wrongly by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of these rules or of the Finance Act or of the rules made thereunder with intent to evade payment of service tax, then, the provider of output service shall also be liable to pay penalty in terms of the Provisions of section (l) of Any Section 78 of the Finance Act. (4) Any order under sub-rule (l), sub-rule (2) or sub-rule (3) shall be issued by the Central Excise Officer following the principles of natural Justice. He submits that a comparison of both the Rules would show that Rule I5(1)(2) apply only in respect of inputs and capital goods and it was Rule I5(3) which was invocable in the case of wrong availment of Cenvat credit of service tax. The said Rule provided maximum penalty of ₹ 2000/-. However, after the amendment, provisions of Rule I5(3) included the wrong availment of service tax in respect of input services. However, the assessee was to be imposed penalty only when the credit was availed wrongly by way of fraud collision or in wilful misstatement of suppression of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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