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TMI Blog2020 (4) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles" and "Business Auxiliary Services". The Appellant also claims to be engaged in trading of vehicles. The Appellant had availed Cenvat Credit for the Service Tax paid on input services received and utilized this for payment of service tax for the services provided by the Appellant. The Appellant did not maintain separate records for the receipt and utilization of the input services credit availed by it, as according to the Appellant it was not engaged in providing any exempted service. According to the Appellant, the activity of trading is not a service and not an exempted service. 3. A show cause notice dated 15 October 2014 was issued to the Appellant mentioning therein that the Appellant appeared to have not paid an amount of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2011 the definition of exempted service has been clarified and the trading activity has been specifically included in explanation clause of the definition of exempted services for clarification. I observe that since the trading activity has been clarified as exempted service, therefore, the provisions of Rule 6 the Cenvat Credit Rules 2004 will attract. Thus, in view of the facts/ provisions of law as discussed above trader was not entitled to take the Cenvat Credit on inputs/ input services meant for used in trading activity. The noticee was required to maintain separate records for receipt, consumption and inventory of input and input service meant for trading activity. Since the noticee failed to comply with this provision, they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Section 66B (44) of the Act inserted by Finance Act 2012 w.e.f 1 July 2012 and so the Appellant is entitled for reversal of proportionate credit. 6. Learned Authorised Representative of the Department, however, submitted that trading of goods is contained in Section 66D (e) of the Negative List of Service and, therefore, the provisions of Rule 6(3) of the 2004 Rules would be applicable. Learned Authorised Representative also submitted that mens rea is not a pre-condition for imposing penalty as has been held by the Supreme Court in Gujarat Travancore Agency Vs. Commissioner of Income Tax 1989 (42) ELT 350 (SC). 7. We have considered the submissions advanced by the learned Counsels for the parties. 8. It is not necessary for us to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal period of limitation would be barred. Accordingly, we set aside the impugned order and remand the matter to the original Adjudicating Authority for re-quantification of the demand falling within the period of limitation. As regards the normal period, Appellant is entitled to contest the same before the authorities below upon the dates when the normal period was changed as also on the basis of precedent decision." [emphasis suppliled] 10. The Appellant had contended that audit had been done and the amount was reflected in the Books of Account and the Balance Sheet. Thus, in view of the aforesaid decision of the Tribunal, it has to be held that the extended period of limitation could not have been invoked. The matter would have to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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