TMI Blog2018 (4) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... haran, Sr. Advocate for Appellant Shri M. Suresh Dy. Commissioner (A.R) for respondent Per : Ramesh Nair The brief facts of the case are that the Appellant are registered under service tax for various categories of services. They were issued show cause notice that during audit it was observed that they have wrongly adjusted the cenvat credit of ₹ 1,24,19,298/- for the payment of service tax in the month of January 2005. The said credit utilized by them is inadmissible in terms of Rule 6 (3) of Cenvat Credit Rules, 2004 and Rule 6 (4A) of the Service Tax Rules, 1994. It was alleged that in terms of Rule 6 (4B) the conditions for suo moto adjustments have not been followed by the Appellant. In terms of said Rule the exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 2004 was utilized by them in January 2005. Thus there is no excess utilization of credit. Had they paid the service tax by utilizing the credit available to them for the period Sep to Dec 04 the payment in cash would have been reduced to that extent. That Rule 6 (3) (c) of Cenvat Credit Rules, 2004 does not prescribe any time limit for utilizing the credit during the period Sep 2004 till Jan 2005 (which falls within the same financial year) are seen as a whole there is no excess utilization of credit. He relies upon the Tribunal s order in case of Vijayanand Roadlines Ltd. 2007 (7) STR 219 (TRI). He also submits that if the books are recasted/ recomputed then there is no excess utilzation of credit. He relies upon the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the revenue regarding restriction of utilization of credit is not applicable to the present case. We find that in case of Vijayanand Roadlines Ltd. 2007 (7) STR 219 (TRI) the Tribunal was dealing with the somewhat similar set of facts has held that the credit accrued does not gets lapsed by non utilization. It held as under : A careful reading of the above provisions show that when the service provider does not maintain a separate accounts of input service for taxable and non-taxable output service, there is a restriction on utilization of the credit. As per the above rule, the utilization is restricted to 35% of the amount of service tax payable on such output service. At any point of time, the service provider can ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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