TMI Blog2018 (5) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under Finance Act, 1994, nor “manufacture” under the Central Excise Act, 1944. Therefore, the portion of input service credit availed for trading activity is not admissible - the credit would not be admissible as is attributable to the trading activity. Time limitation - penalty - Held that: - the appellants have admittedly argued that the issue was clearly of interpretation, which was finally settled by way of insertion of explanation under N/N. 3/2011-CE (NT) dt. 01.03.2011 - extended period and penalty not invocable. Appeal allowed in part. - E/58434/2013-EX[SM] - FINAL ORDER NO. 62001/2018 - Dated:- 19-3-2018 - Mr. Devender Singh, Member (Technical) Present for the Appellant(s): Mr. Maheshwari, C.A. Present f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that they had availed total Cenvat credit of ₹ 8,50,695/- during the period from 2007-08 to 2010-11. Out of the same, cenvat of ₹ 29,020/- was found to be directly attributable to the output service towards 'Authorized Service Station' and the remaining amount of ₹ 8,21,675/- was attributable towards the credit availed in respect of input services utilized for providing the taxable service as well as non-taxable service. In the light of the judgment rendered in the case of Orion Appliances Ltd. (supra), the credit of tax admissible was calculated on proportionate basis by deducting the material cost from the sales sector and by finding the ratio of service income to the sum of service income and net sales income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad 2010 (19) STR 205 (Tri.-Ahmd.) (iii) Delcam Software India Pvt Ltd. vs. CCE, Pune-I 2016 (43) STR 103 (Tri.-Mum.) (iv) Lotte India Corportation Ltd. vs. CCE, Pondicherry 2015 937) STR 876 (Tri.-Chen.) (v) CCE, Indore vs. Medicaps Ltd. 2011 924) STR 572 (Tri.-Del.) (vi) South City Motors Ltd. vs. CST, Delhi 2012 (25) STR 483 (Tri.-Del.) 4. Ld. A.R. reiterated the findings in the order of Commissioner (Appeals) and relied on the judgment of this Tribunal in the case of CST, New Delhi vs. AVL India Pvt. Ltd. reported in 2017 (4) GSTL 59 (Tri.-Del.). 5. Heard both the sides and perused the records. 6. The allegation in the show cause notice is that the appellants had wrongly used input service credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no one to one correlation required. This is the reason why provisions have been made in Cenvat Credit Rules and Service Tax Credit Rules to cover such situations where an assessee is providing both exempted and taxable services. In cases where an assessee is undertaking activities which cannot be called a service or which cannot be called manufacture, that activity goes out of the purview of both Central Excise Act as well as Finance Act, 1994. Therefore, we have a situation where an assessee would not be eligible to take input Service tax credit on an output which is neither a service nor excisable goods and at the same time there is no provision to cover situations where an assessee is providing a taxable service and is undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly solution that could be thought of what has been discussed above. In view of the above discussion, the matter is remanded to the Original Adjudicating Authority before whom the appellants shall present the details relating to service tax paid on input services attributable to trading activity and other services separately and after verification if felt necessary, the adjudicating authority shall quantify the amount to be reversed or payable by the appellant. It is made clear that if the Original Adjudicating Authority is not satisfied with the report given by the appellants and proposes any revision, such revision shall be made only after giving an opportunity to the appellants. In view of the above, so much of the credit would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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