TMI Blog2018 (11) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition sale of goods, be it made in the high sea or within territorial boundary of India in which Finance Act, 1994 has its force, cannot be called a service to impose tax liability or deny the credit under Rule 6 of Cenvat Credit Rules. The language imported in Rule 6(3AA) is therefore very clear and unambiguous that at the time of adjudication such option can be permitted to the assessee to be exercised in respect of the duty liability and interest to be calculated per annum from the due date for payment of amount for each of those months. Further, Rule 6(3AB) provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and challenged the wrong application of rule to its case as well as errorness computation of amount inclusive of the month of March 2011, which was prior to the period when the trading was put under exempted service. Referring to the judicial decisions and statutory provisions, appellant claimed that sub-rule 3AA to Rule 6 of Cenvat Credit Rules inserted vide cenvat credit third amendment 2016 was applicable to its case and as per its provisions, appellant had recalculated the duty liability and reversed proportionate credit amount of ₹ 20,294/- along with interest of ₹ 9754/- for which appellant claims the duty demand was made under mistaken recalculation. 4. The adjudicating authority vide its order confirmed the duty deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of movable property other than actionable claim and money; and includes securities, growing crops grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. In the common parlance, trading is buying and selling of goods. If goods are bought and sold then sales tax is levied which later becomes value added tax and now being dealt under GST. The taxable event of service tax is the act of providing service while act of sale alone is covered under taxable event of sales tax. Therefore, to call trade as service is conceptually improper. Hon'ble Supreme Court, in the presidential reference made in 1962, gave its landmark verdict that has been reported in 1963 AIR SC 176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d included the same in Article 366 of the Constitution of India under a new Article (29A). Service as defined under 65B (44) of the Finance Act, 1994 excludes (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution 8. From a bare reading of the definition and provision reproduced above, it is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning trading of goods and the clarificatory circular referred above as well as inclusion of the same in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Assessee who has opted to pay an amount under clause (ii) or clause (iii) of sub-rule (3) in the financial year 2015-16, shall pay the amount along with interest or take credit for the said financial year in terms of clauses (c), (d), (e), (f), (g), (h) or (i) of sub-rule (3A), as they prevail on the day of publication of this notification and for this purpose these provisions shall be deemed to be in existence till the 30th June, 2016. Therefore his finding is not tenable for the reason that the said rule clearly permits central excise officer competent to adjudicate a case based on amount of cenvat credit involved to allow manufacturers or provider of output service to follow the procedure and pay amount referred in clause (ii) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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