TMI Blog2018 (7) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... i) of Cenvat Credit Rules - demand do not sustain. Time Limitation - Held that:- The appellants had been reversing the credit availed on common input services and informed the department whenever the details were asked for. Thus the department was fully aware that the appellants were conducting trading activity - the demand raised invoking the extended period is without any factual or legal basis. Appeal allowed - decided in favor of appellant. - E/41349-41350/2013 - FINAL ORDER No. 41364-41365 /2018- - Dated:- 18-4-2018 - Ms. Sulekha Beevi C.S. Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri S.Thirumalai, Advocate For the Appellant Shri K.Veerabhadra Reddy, JC (AR) For the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest and imposed penalties. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the appellant, the Ld.Counsel, Shri S.Thirumalai argued both on merits as well as on the grounds of limitation. He submitted that Rule 2 (e) of Cenvat Credit Rules, 2004 defines exempted services . The said rule was amended with effect from 1/4/2011, wherein an explanation was added which provides that exempted services includes trading. Thus after 1/4/2011, trading is an exempted service. However, prior to the said period, there was much confusion as to whether trading is an exempt service or not. The appellants therefore had availed credit on the common input services used for manufacture of dutiable final products as well as tradin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, New Delhi II vs M/s.Indraprastha Gas Ltd. vide F.O.No.57931/2017 dt.14.11.2017 was also relied by the Ld.Counsel. 3. On the ground of limitation, the Ld.Counsel submitted that for the earlier period from April to November 2005, SCN s were issued on the very same issue, out of which one notice was adjudicated. In the said case, the adjudicating authority had directed the appellant to reverse the proportionate credit. The appellant thereafter was following the said decision and reversing the proportionate credit. The department was completely aware of the facts of availing credit on common input services and had issued SCN for the earlier period and adjudicated the same. This being so, the demand raised invoking the extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. v. C.C.E., Pune I - 2015 (40) STR 381 (Tri-Mum.) = 2015-TIOL-1550-CESTAT-MUM has held that the condition given in Rule 6(3A) to intimate the Department is only procedural matter and the delay of such procedural matter is condonable and therefore, substantive right given in the said Rule cannot be denied for such procedural lapse. The Tribunal has also held that Commissioner cannot insist that assessee should reverse only as per Rule 6(3)(i) but it is the option of the assessee. Tribunal in that case held that as follows: 5.3 As regard the contention of the adjudicating authority that this option should be given in beginning and before exercising such option, we are of the view that though there is no such time limit provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the Department is entitled to verify whether reversal of the amount already made by the appellant satisfies the requirement of Rule 6(3)(ii) notwithstanding the fact that the procedural formalities have not been satisfied. For this purpose, we remand the matter to the original authority to carry out verification. 7. Similar view has been taken in all the cases relied by the Ld.Counsel for appellant. Following the same, we are of the considered opinion that the demand cannot sustain and requires to be set aside which we hereby do. The appeal succeeds on merits. 8. The Ld.Counsel has also argued on the ground of limitation. The appellants have been issued show cause notices for earlier periods on identical issue. The appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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