TMI Blog2020 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure prescribed under Rule 6 (3A) of the CCR does not result in loosing substantive right to avail the option of reversing proportionate credit as envisaged in Rule 6(3) (i); That procedural lapse is condonable and denial of substantive right is unjustified. There are no hesitation to hold that the view taken by the Commissioner (Appeals) that the appellant has to reverse credit as per Rule 6 (3) (i) is against the provisions of law. The appellant would be eligible for refund after reversal / paying of proportionate credit on exempted services by applying Rule 6 (3) (i). This amount however has to be verified. Appellant has furnished details of the credit availed and the amount reversed by them along with the letters issued to departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for declared services as per Section 66E (e) of the Finance Act,1994, the appellants were paying service tax. The appellants were thus engaged not only in trading but also providing taxable service. The appellants utilized input services provided by M/s.Amazon for engaging in trading as well as providing taxable service. From June 2014, they started availing input tax credit for the period commencing from April 2014 and took credit upto October 2015 on the service tax collected from them by M/s.Amazon on Business Support Service and Storage and Warehousing services. They were advised that they were not eligible to avail credit on such service tax paid to M/s.Amazon and therefore they, as an abundant caution to avoid penal proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire input service credit by way of paying cash. On receiving proper legal advice, they filed the refund claims of excess payment made to the tune of ₹ 47,38,050/- and ₹ 6,17,934/- on 17.2.2016 after complying the formula prescribed under Rule 6 (3A) (ii). The Commissioner (Appeals) held that the appellants would be eligible for refund of ₹ 4,31,586/- along with interest observing that Rule 6(3A) (ii) is not applicable and that the appellant has to pay / reverse credit as prescribed under Rule 6 (3A) (i) for the reason that the appellant has not complied with the procedure of intimating the department with regard to their option. It was argued by the Ld. counsel that the said condition of intimating the department is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6(3) (i) is ₹ 81,79,395/-. However, the appellant have reversed / paid ₹ 86,10,981/- resulting in excess payment of ₹ 4,31,586/-. 10. It is observed that the impugned reversal/payments were made in December, 2015 and the refund claim was filed in February,2016. Hence, the refund claim is not hit by time bar. Regarding unjust enrichment, it appears that appellant s claim that they have not passed on the incidence of the impugned amount to any other person is prima facie acceptable. However, this shall be proved by the appellant beyond pale of doubt with the support of documents and records. From the above observation, it can be seen that the appellant has been compelled to reverse credit @ 7% of the value of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is an option duly permitted under Rule 6(3)(ii) of the CCR itself. Non-compliance with the procedure prescribed under Rule 6(3A) of the CCR does not result in the manufacturer losing his substantive right to avail the option of reversing proportionate credit, as such procedural lapse is condonable and denial of substantive right on such procedural failure is unjustified in light of the decision of the Tribunal in the Cranes Structural Engineers Case (supra). Therefore, the imposition of Rule 6(3)(i) of the CCR for demanding payment of 5%/6% of the sales value of electricity is even otherwise unsustainable. 5. From the above, we have no hesitation to hold that the view taken by the Commissioner (Appeals) that the appellant has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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