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TMI Blog2021 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... d medium enterprises. Accordingly, was registered with the Service Tax Department under the category of Banking and Financial Services, Management and Business Consultancy Services, Renting of Immovable Property Services etc. The Meerut Unit of Directorate General of Goods and Service Tax Intelligence (DGCEI) initiated an enquiry in January, 2017 against the appellant with respect to compliance of Rule 6 (3B) of Cenvat Credit Rules, 2004. It was alleged that the appellant has not complied with the said provision in as much as it has failed to pay on monthly basis, an amount equal to 50% of the credit availed on inputs and input services used for provision of output service of banking and other financial services. Accordingly, a show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that in view of the acknowledgement of excess deposit, the order of recovery even of said Rs. 20,00,000 (twenty Lakhs) is bad in law. 3.1 It is submitted that whatever was the deficiency for the reversed amount of Cenvat Credit per month had been made good at the time of filing the service tax returns. The returns are filed six monthly i.e. on 25th of April and 25th of October. It is impressed upon that the adjustment of duty liability is legally permissible. The said adjustment is not only mentioned in Rule 6 itself i.e. 6 (3A) of the Cenvat Credit Rules but is also mentioned in Rule 6 (4A) of Service Tax Rules. Above all, the order under challenge is absolutely silent about the status of excess deposit of Rs. 54,00,000/- (Fifty four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Credit has to be made on monthly basis. The word "shall" has been used in the provision to mandate the monthly reversal of Cenvat taken on the inputs / input services each month. It is impressed upon that apparently and admittedly each month has some shortage as is otherwise apparent from the table in the order itself except for the month of November, 2011 and March, 2012. Due to this mandate only, there is no error in the adjudicating order for confirming the demand of Rs. 22,73,183/-. With respect to the acknowledged excess payment by the appellant it is submitted by ld. D.R. that appellant had the appropriate remedy for getting the refund. However, said submission has been objected on the ground that remedy of refund is by now time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months has been made good. Not only this, it is also an admission on part of department that due to deposits made at the time of filing the Service Tax returns the reversal becomes more than 50%. Thus, the issue stands squeezed to the effect as to whether adjustments of payment is permissible despite the mandate of monthly reversal of Cenvat Credit for an amount equal to 50% of the credit availed. Rule 6 of Cenvat Credit Rules itself has been brought to the notice: Rule 6 (3A) (d) reads as follows:- "the manufacturer of goods or the provider of output service, shall pay an amount equal to the difference between the aggregate amount determined as per condition (c) and the aggregate amount determined and paid as per condition (b), on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been specifically held in this case as follows:- "we are of the view that if in a particular month against the liability of 20% if the appellant utilized less than 20% and the remaining amount is available to the appellant for utilization and the same was utilized in subsequent month. On considering overall period, the total utilization remains within 20% ceiling irrespective in same month utilization is less than 20% and in subsequent month, the utilization is more than 20%, the conditions of Rule 6(3)(c) of Cenvat Credit Rules, 2002, in our view stand complied with." 10. In another case titled as Principal Commissioner, CGST and Central Excise Headquarters Bhopal vs. M/s. Godrej Consumer Products Ltd. reported in 2019 (5) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant cannot be denied to him. The Principal Commissioner is opined to have formed a very rigid opinion on a rigid technical ground while confirming the demand even of Rs. 22,73,183/- despite acknowledging the excess reversal of Cenvat Credit amount by the appellant. 13. Further, I am of the opinion that once there is an excess payment, malafide intention that too of tax evasion cannot be alleged qua the appellant. No doubt the period of one year of serving Show Cause Notice stands extended to 5 years had there been the intent to evade tax or there is suppression of tax but from the above discussion it is apparently clear that there is no evasion of tax /duty, no question of intent to evade at all arises. Admittedly entire Ledger Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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