TMI Blog2021 (7) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the Department is entitled to verify whether reversal of the amount already made by the appellant satisfies the requirement of Rule 6(3)(ii) notwithstanding the fact that the procedural formalities have not been satisfied. Time Limitation - suppression of facts or not - HELD THAT:- The appellants have been issued show cause notices for earlier periods on identical issue. The appellants have disclosed the credit availed in the returns filed by them. They had submitted all the documents called for by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avy engineering industries. Apart from the manufacturing activity, the appellants also import some lubricating oils from other countries which are directly received at their selling depots at various locations. From there, the goods are sold by the appellant to their customers. Out of the total sales turnover of the company, the proportion of trading goods, sold is around 2% since past several years. The head office of the appellant company is located at Mumbai and was registered as a Input Service Distributor (ISD) under the erstwhile Cenvat Credit Rules, 2004. The credit pertaining to services received at head office, regional offices, etc. of the appellant company was distributed to all the three manufacturing units including Paharpur pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand alongwith interest and imposed penalties. On appeal, the learned Commissioner(Appeals) passed the Order-in-Appeal dated 20.04.2018 rejecting the appeal and upholding the Order-in-Original. Hence the present appeal before the Tribunal. 2. Shri Sushanth Murthy, learned Advocate appearing on behalf of the appellant argued both on merits as well as on the ground of limitation. He filed a compilation showing list of dates and events and copies of the relied upon case laws. 3. He submitted that Rule 2 (e) of Cenvat Credit Rules, 2004 defines exempted services . The said rule was amended with effect from 1/4/2011, wherein an explanation was added which exempted services including trading. Thus after 1/4/2011, trading is an exempted ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs, Central Excise Service Tax, Aurangabad 2018 (3) TMI 273 CESTAT, Mumbai. The decision in the case of M/s.Continental Device India Pvt. Ltd. vs CCE and ST, New Delhi vide 4 F.O.No.50674/2018 dt.16/2/2018 as well as the decision in the case of CCE, New Delhi II vs M/s.Indraprastha Gas Ltd. vide F.O.No.57931/2017 dt.14.11.2017 was also relied upon by the learned Counsel. 4. On the ground of limitation, the learned Counsel submitted that for the earlier period from April to November 2005, SCN‟s were issued on the very same issue, out of which one notice was adjudicated. In the said case, the adjudicating authority had directed the appellant to reverse the proportionate credit. The appellant thereafter was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is noted that the appellant has reversed the credit in proportion to the credit availed in respect of trading activity / traded goods. The only reason for raising the demand to the extent of 10% / 8% / 6% of traded goods for the disputed period, is that the appellants have not filed declaration as contemplated in Rule 6 (3A). The said issue has been settled by the decisions relied upon by the learned Counsel for appellant. The Tribunal in the case of Dalmia Bharat Sugar Industries Ltd., vs. CCE-2017-TIOL-113-CESTAT-DEL has followed the decision in the case of Mercedes Benz India Pvt Ltd (supra), wherein it was observed as under :- 8. We find that the coordinate Bench of this Tribunal in the case of Mercedes Benz India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(3)(ii). The meaning of the option as argued by the Ld. Sr. Counsel is that option of right of choosing, something that may be or is chosen, choice, the act of choosing . From the said meaning of the term 'option', it is clear that it is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. 9. In the light of the above decision of the coordinate Bench we find that the Commissioner is not justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the D ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
