TMI Blog2021 (3) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the same cannot be said to be an exempted service and the provisions of Rule 6(3) is not applicable to an activity which is in the negative list. Further, the appellant during the stage of the audit itself has produced record before the audit saying that appellant has duly prepared separate accounts for cenvat credit availed in respect of taxable service, common credit availed for exempted services and taxable services. CENVAT Credit - input services - Air travel - accommodation charges - taxi hire charges - AMC for flat at Delhi - HELD THAT:- As far as Air travel/visa, accommodation and AMC for flat at Delhi is concerned, keeping in view the nature of output service rendered by the appellant the employees have to travel to places to organize business exhibitions and events and hence the travel is in relation to the output service provided and moreover these services have been held to be input service in the case of M/S EMCON TECHNOLOGIES INDIA PVT LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, BANGALORE [ 2012 (11) TMI 1019 - CESTAT BANGALORE] . AMC charges for the flat - HELD THAT:- When the accommodation bears a direct nexus with the output service, hence the AMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service, Business Exhibition Service, Business Auxiliary Service and are availing credit on eligible inputs and input services in terms of CCR, 2004. In the course of rendering taxable services, appellant is also engaged in the activity of sale of time/space for advertisement in print media and for rendering such services appellant availed cenvat credit on common input services attributable to such services like internet charges, mobile/telephone charges, air fare, taxi hire charges, travelling expenses, server hosting charges, courier charges, stationary etc. as eligible credit in terms of CCR, 2004. Audit was conducted by the Audit Commissionerate for the period October 2011 to September 2015 during July and August 2016 wherein the following discrepancies were noticed- i. It is alleged in the show-cause notice that appellant was engaged in both taxable as well as exempted services and have not maintained separate accounts for availing cenvat credit as per Rule 6(2) and have neither reversed proportionate credit under Rule 6(3A) of CCR, 2004. Therefore, appellant is liable to reverse credit availed on exempted services as per Rule 6(3)(i) @ 6/7%. ii. Resultantly, on non-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that for the purpose of computing reversal of credit, the show-cause notice has computed reversal @6/7% on total credits whereas appellant has never availed credit on inputs directly attributable for the activity of selling of space in print media. He further submitted that both the authorities have wrongly come to the conclusion that the appellant has not maintained separate accounts under Rule 6(2) whereas the fact of the matter is that the appellants for each Division has accounted income and expenditure separately and therefore requirement for maintenance of separate accounts for credit attributed towards taxable, exempted and common credit is complied as per Rule 6(2). He also submitted that because of the maintenance of separate account, it was possible for the appellant to identify credits attributable towards common and taxable services. He further submitted that for the sake of assuming but not admitting that sale of space is an exempted service even then the appellant has reversed cenvat credit amounting to ₹ 60,672/- (Rupees Sixty Thousand Six Hundred and Seventy Two only) along with interest as computed under Rule 6(3A) of CCR, 2004 on the propor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d computation for reversal as per Rule 6(3A), appellant is liable to reverse an amount of ₹ 54,772/- (Rupees Fifty Four Thousand Seven Hundred and Seventy Two only) as per the detailed computation chart attached with the writeen submissions whereas the appellant has already deposited total tax amounting to ₹ 3,53,043/- (Rupees Three Lakhs Fifty Three Thousand and Forty Three only). Learned consultant for the appellant submitted that when the appellant has reversed the credit with interest at the point of audit inquiry, show-cause notice should not have been issued in terms of Section 73(3) of the Finance Act, 1994. For this, he relied upon the decision in the case of CCE Vs. M/s. Adecco Flexion E Workforce Solutions Ltd. 2012 (26) S.T.R. 3 (Kar.). As far as second issue involved in the present case is whether the appellant is entitled to avail the cenvat credit on input services which has been denied by the Department. The impugned order disallowed cenvat credit amounting to ₹ 1,60,095/- (Rupees One Lakh Sixty Thousand and Ninety Five only) availed in respect of Air Travel/Visa Charges, Taxi Hire Charges, Accommodation Charges, AMC for flats and telecom charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd submitted the copies of AMCs and submitted that the cenvat credit has been denied on the ground that the service was provided in unregistered premises. He relied upon the decision of the Karnataka High Court in Mportal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore 2012 (27) S.T.R. 134 (Kar.) wherein it was held that registration with the Department is not a pre-requisite for claiming the credit. Learned counsel also submitted that extended period of limitation has been wrongly invoked because show-cause notice was issued on the basis of departmental audit undertaken for the period October 2011 to September 2015 and all the facts were already within the knowledge of the Department. For this, he relied upon the following decisions: LANDIS + GYR Ltd. Vs. CCE - 2013 (290) E.L.T. 47 (Tri.-Kolkata) GAC Shipping India Pvt. Ltd. Vs. CCE 2017 (49) S.T.R. 242 (Tri.-Bang.) BHEL Vs. CCE ST 2020 (43) GSTL 395 (Tri.-Hyd.) 4.3. As far as interest and penalty is concerned, the appellant submitted that they have already reversed proportionately common credits, hence there is no short payment or non-payment of service tax under Rule 6(3)(i) of CCR, 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot incumbent on the Department to issue a show-cause notice demanding reversal of 6/7% of the exempted turnover. Further, I find that it has been consistently held by the Tribunal in various decisions cited supra that Rule 6(3) clearly gives an option and it is for the manufacturer/service provider to make a choice and not intimating the Department regarding the choice is only a procedural lapse which will not defeat the substantive right of the appellant to avail the option provided under Rule 6(3). I also find that as per the revised computation for reversal as per Rule 6(3A), appellant was only liable to reverse an amount of ₹ 54,772/- (Rupees Fifty Four Thousand Seven Hundred and Seventy Two only) whereas he had already reversed during the audit ₹ 60,672/- (Rupees Sixty Thousand Six Hundred and Seventy Two only) along with interest. In view of the above discussion, with regard to issue no. (1) I hold that appellant has complied with the requirement of 6(3A) by reversing the amount which was required to be reversed. As far as wrong availment of credit on input service is concerned, I find that as far as Air travel/visa, accommodation and AMC for flat at Delhi is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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