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2019 (5) TMI 1014

uppression of facts or not - HELD THAT:- A pure sale, unassociated with delivery of goods and services together, is not to be considered as service - 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. Trading is not at all a service, as it is a sale of goods for which vat is applicable and as because it is not a service, it is put in the exempted category as an example that trading is not a service for which exemption is also applicable. Likewise audit report cannot be the sole consideration for invocation of extended period to demand duty and impose of penalty .....

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account for common input services used in respect of dutiable goods and exempted services under Rule 6(3A) of CENVAT Credit Rules, 2004 but allegedly adopted wrong formula which is not in conformity to 6(3)(iii)(3) of the pre-amended CENVAT Credit Rules, 2004 prevailing at the relevant period pertaining to respondent s transaction period from 2012-13 to 2014-15. EA-2000 Audit pointed out the same and for the financial year 2011-12, appellant re-calculated as well as deposited differential amount along with interest amounting to ₹ 11,67,012/- but despite such corrections made, it continued to follow the old practice for post 2012 financial year for which it was put to show-cause notice on the basis of audit report, matter was adjudicat .....

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unt on CENVAT credit taken on common input services proportionately instead of total input services which was the correct procedure followed by the respondent inconformity to Rule 6(3)(iii)(3) and it availed the credit only on such portion of input and input services used in providing taxable goods/services and confusion as well as dispute had arisen due to faulty description of the formula prescribed in Rule 6(3A)(C)(iii) which is (M/N) * P, where M denotes total value of exempted services and goods, N denotes total value of output and exempted services & P denotes total value of input services taken during the financial year. He further contended that insistence of the department to categories P as the net CENVAT credit and not the gr .....

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ale of goods as used in entry of the 7th schedule to the constitution was treated to have carried the same meaning as in the Sale of Goods Act, 1930, coupled with subsequent decisions of the Hon'ble Supreme Court were the prelude to passage of such an Amendment Act that suitably amended tax on the sale or purchase of goods and included the same in Article 366 of the Constitution of India under a new Article (29A). 5.2 On the other hand 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. 6. From a bare reading of the definition and provision reproduced above, it is apparen .....

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ollow correct procedure in future. It is also referred in the said manual that after such submission of audit report, in cases where the disputed amount have not already been paid by the assessee at the spot, demand notices are issued by the department for their recoveries. EA 2000 audit was therefore held to be participative audit. Likewise CERA audit is conducted by the Comptroller and Auditor General of India in respect of receipt and expenditure of the Government of India. It also discharges revenue audit which covers central excise, service tax and customs laws during which time the assesses were examined by CERA audit party to point out the deficiencies, leakage of revenue and non recoveries of dues by the Central Excise Department. T .....

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