TMI Blog2019 (7) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... D] , this Tribunal again reiterated that Rule 6(3A) is only a procedural which cannot deny the substantive right. In the present case, the appellants are prepared to reverse the proportionate credit which according to them comes to only to ₹ 15,922/- along with interest. Penalty - no suppression of facts - HELD THAT:- There was no suppression of fact with intent to evade payment of duty. Further the non-reversal was due to bona fide belief founded by the appellant regarding the eligibility of the credit - the appellant is not liable to penalty. Appeal allowed in part. - E/20068/2019-SM, E/20069/2019-SM - Final Order No. 20529-20530/2019 - Dated:- 5-7-2019 - MR. S.S GARG, JUDICIAL MEMBER Shri Prateek, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , HT bolts etc. which is an exempted service. They were availing CENVAT credit on common input services like erection charges, auditor fees, maintenance repair services etc. used in manufacturing as well as trading activity but had not maintained separate accounts in respect of inputs / input services used in dutiable and exempted activities as required in terms of Rule 6(2) of CENVAT Credit Rules, 2004 (CCR, for short). On these allegations, the show-cause notice was issued to the appellants proposing to demand and recover an amount of ₹ 7,89,036/- being 6% of the value of exempted services availed for the period from 2011-12 to 2014-15 by invoking Rule 14(1)(ii) of the CCR read with Section 11A(4) of the Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Tribunal in the case of Aster Pvt. Ltd. Vs. CC [2016(43) STR 411 wherein the Tribunal has held that the said rule does not say that on failure to intimate, the manufacturer / service provider would lose his choice to avail the second option of reversing proportionate credit. It was further held that Rule 6(3A) was only a procedural rule which cannot deny the substantive right. Appellant also relied upon the decision of the Tribunal in the case of Mercedes Benz India (P) Ltd. Vs. CCE [2015(40) STR 381 wherein the assessee was permitted to file the option under Rule 6(3A) at the appellate stage also. He further submitted that there is nothing in Rule 6(3)(ii) and Rule 6(3A) which states that if the amount had not been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised. In the present case, admittedly there is no intimation given by the appellant informing the exercise of his option. The argument of the Department is that when the appellant has not intimated his option in writing then the appellant is bound to pay the duty amount calculating under the first option. According to me, this argument is devoid of merit, because the said Rule does not say anywhere that on failure to intimate, the manufacturer/service provider would lose his right to avail second option of reversing the proportionate credit. Sub-rule (3A) of Rule 6 is only a procedure contemplated for application of Rule 6(3). Consequently, the argument of Revenue is that the appellants exercising option is mandatory and on its failure, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the present case, the appellants are prepared to reverse the proportionate credit which according to them comes to only to ₹ 15,922/- along with interest. As far as penalty is concerned, the learned consultant submitted that there was no suppression of fact with intent to evade payment of duty. Further the non-reversal was due to bona fide belief founded by the appellant regarding the eligibility of the credit. He also relied upon the following decisions:- i. Sourav Ganguly Vs. UOI [2016(43) STR 482] ii. Uniworth Textiles Ltd. [2013(288) ELT 161] iii. Pahwa Chemicals P Ltd. Vs. CCE [2005(189) ELT 257] iv. Larsen Toubro Ltd. Vs. CCE, Pune-II [2007(211) ELT 513] ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
