TMI Blog2021 (8) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004. Since the learned Counsel has only confined his arguments on limitation and has not pressed on merit on account of conflicting decisions of the various Tribunals and the High Courts, hence the findings are restricted with regard to limitation alone - Since there was no wrong utilization of CENVAT credit and the appellant has reversed the proportionate credit attributable to trading prior to its utilization and therefore the demand of interest and imposition of penalty is not sustainable. The extended period cannot be invoked and the demand of CENVAT credit can only be made with regard to normal period - the matter is remanded to the Original Authority for quantification of the demand for the normal period - Appeal allowed by way of remand. - Service Tax Appeal No. 26822,26824-26830 of 2013 - FINAL ORDER NO. 20654 - 20661/2021 - Dated:- 3-8-2021 - MR. S.S GARG, JUDICIAL MEMBER Shri Ravi Raghavan, Advocate for the Appellant Shri Narendrababu P. Byahatti, Authorized Representative for the Respondent ORDER These appeals have been received from the Hon ble High Court of Karnataka and the Hon ble High Court vide its Order dated 4th March, 2021 has rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allation of electrical equipment to various agencies like State Electricity Boards, National Thermal Power Corporations, Delhi Metro Rail Corporation, Damodar Valley Corporation, Reliance Infrastructure Ltd and various other agencies. For undertaking the said projects, the appellant used various goods manufactured as well as imported and locally procured. The appellants in the course of their business received various input services like catering service, courier service, event management, house keeping, manpower recruitment etc. and availed CENVAT credit of input services under the provisions of CENVAT Credit Rules, 2004. The Department issued a Show-Cause Notice dated 19.10.2010 requiring the appellant to show cause as to why credit availed on input services pertaining to trading will not be available as per Rule 6 of CENVAT Credit Rules, 2004. The appellant filed reply rebutting all allegations in the Show-Cause Notices. The Assistant Commissioner vide various Order-in-Original confirmed the demand relating to input service credit along with applicable interest and imposition of penalty. Aggrieved by the said order, the appellant filed 8 appeals before the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(e) is applicable retrospectively or prospectively and therefore he did not press these appeals on merits and has confined his arguments only on the point of limitation. Learned Counsel submitted that the entire demand has been confirmed by invoking the extended period of limitation which is not legally justified because the appellant has never suppressed any facts relating to the availment of CENVAT credit from the Department. The appellant has regularly filed half-yearly service tax Returns in Form ST-3 with the Department during the relevant period and the details of the availment of CENVAT credit is duly disclosed in ST-3 Returns. He further submitted that on the same issue for the subsequent periods in respect of different units of the appellant, this Tribunal has allowed the appeals on the ground of limitation in ABB Ltd. Vs CCE, Bangalore, Final Order No. 20056-20057/2018 dated 12.01.2018 and in ABB Ltd, Maneja Vs CCE, Bangalore, 2018-TIOL-3272-CESTAT-BANG. He also submitted that there is no requirement under law to disclose that the input services have been used in relation to trading in the ST-3 Returns. The information which is not required to be supplied under law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. On the other hand, learned AR reiterated the findings of the impugned order and submitted that trading is not at all a service. He further submitted that Rule 2(e) was amended from 01.04.2011 to include trading as an exempted service. This amendment was made applicable retrospectively and this has been held as retrospective in the case of Ruchi Global Enterprises reported in 2017-TIOL-1235 (HC Madras) wherein it has been held that trading activity is not amenable to service tax at the relevant period and therefore the assessee was required to reverse the proportionate CENVAT credit attributable to trading. Learned AR also relied upon the decision in the case of Micro Lab Ltd., Final Order No.21265-21285/2016 dated 23.11.2016. 8. After considering the submissions of both the parties and perusal of the material on record and after considering the various decisions relied upon by the appellant as well as by the learned AR, I find that the Department was very well aware of the trading activity carried out by the appellant because the details of trading was furnished by the appellant during the relevant period on the basis of which the demand has been raised. The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in CCE v. Neminath Fabrics Pvt. Ltd. as well as decision of a Division Bench of this Court in the case of M/s. King Bell Apparels (supra) are not applicable to the facts of the present case as even without attributing any knowledge to the Revenue Authority about such dispute, the fact remains that in view of the Explanation inserted later on in favour of the Assessee for the period prior to 1-4-2011, the Revenue Authority cannot be permitted to reverse such CENVAT Credit and recover the Duty, alleged to have been evaded by the Assessee, invoking the extended period of limitation under Section 11A of the Act. 8. Therefore, the controversy stands covered by the Supreme Court decision in Kolety Gum Industries case (supra), relied upon by the Learned Counsel for the Assessee and the present Appeal of Revenue is found to be devoid of any merit and the same is liable to be dismissed. Accordingly, it is dismissed. No costs. 8.1. Since the learned Counsel has only confined his arguments on limitation and has not pressed on merit on account of conflicting decisions of the various Tribunals and the High Courts, hence I restrict my findings with regard to limitation alone. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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