TMI Blog2019 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... jointly and not in exclusion of each other. This being the statutory definition, sale of goods; be it made in the high sea or within the 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. Extended period of limitation - penalty - Held that:- The respondent has not brought-forth any cogent evidence on record to establish the charge of wilful suppression by the appellant company. The order imposing penalty and invoking extended period for issuing SCN is held to have no legal basis. Appeal allowed in part. - E/52220/2018-EX [SM] - Final ORDER NO. 50187/2019 - Dated:- 5-2-2019 - MRS. RACHNA GUPTA, MEMBER (JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed the impugned Order-in-Original No. 19/ADC/D-I/2017 dtd. 28.2.2017 confirming the demand of duty amounting to ₹ 22,43,198/- being 5% of value of trading goods, ordered recovery of interest at appropriate rate and imposed penalty of ₹ 2243198/- on the Appellants. 2. Being aggrieved by the Order-In-Original dtd 28.12.2017 the Appellants filed the Appeal before the Ld. Commissioner Central Tax, Appeals-II , Delhi, holding that the Appellants are entitled to reverse the Cenvat Credit under Rule 6(3A) of the Cenvat Credit Rules, 2004 but remanded the case back to the Adjudicating Authority for ascertaining the quantum of reversible Cenvat Credit after examining the documentary evidence produced by the Appellants. He furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of availing cenvat credit, the Appellants considered that the trading goods will be 10% and accordingly they have availed only 90% of service tax on common inputs services. sometimes, they have availed only 78% input service tax credit and sometimes 92% input credit was availed. During the year 2011-2012 the total service tax available as input credit was ₹ 1,19,63,278/- but the Appellants have availed only ₹ 1,07,66,950/- and did not avail ₹ 11,96,328/-. This is apparent from the chart submitted in reply to the Show Cause Notice showing that input service tax credit pertains to transport, courier service, maintenance, repair, etc. 7. I also observe that Service as defined under 65B (44) of the Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of each other. This being the statutory definition, sale of goods; be it made in the high sea or within the 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. Hon‟ble High Court at Madras in the case of Ruchika Global Interlinks vs. CESTAT, Chennai reported in 2017 (5) GSTL 225 (Mad.) has held as follows:- Both before and after amendment, exempted services meant those taxable services, which were exempt from whole of Service Tax and, included those services on which Service Tax was not leviable, under Section 66 of Finance Act, 1994. Inclusion in Explanation to Rule 2(e) of Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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