TMI Blog2022 (5) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order has arrived at an incorrect computation. Accordingly, the computation is set aside and matter remanded back to the original authority for a fresh decision that is in consonance with law as judicially determined - Appeal allowed by way of remand. - SERVICE TAX APPEAL NO: 88096 OF 2017 - A/85431/2022 - Dated:- 6-5-2022 - MR C J MATHEW, MEMBER (TECHNICAL) Shri Mehul Jivani, Chartered Accountant for the appellant Shri Dilip M Shinde, Assistant Commissioner (AR) for the respondent ORDER The issue in this appeal of M/s JWC Logistics Park Private Limited, against order-in-appeal no. MKK-88-89/RGD/APP/2017 dated 9th October 2017 of Commissioner of Central Tax GST (Appeals), Raigad, arises from availment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions relied upon by the appellant are squarely applicable to the facts of the present case inasmuch as the established principles of law is that the appellate authority is not empowered to raise any fresh issue for the first time, which was not proposed in the show cause notice. Further, I also find that for consideration of the prescribed formula, the learned Commissioner (Appeals) has not specifically issued any notice to the appellant-assessee for the defence submissions. Hence, I am of the considered view that consideration of altogether a new ground in the impugned order cannot be sustained for judicial scrutiny and accordingly, the appeal of the appellant-assessee should succeed on such ground. Learned Chartered Accountant cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or input service used in dutiable goods shall not be allowed. The Revenue is only interpreting the term total Cenvat credit provided under the formula. If the whole Rule 6(1), (2) and (3) is read harmoniously and conjointly, it is clear that Total Cenvat Credit for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include the Cenvat credit on input/input service exclusively used for the manufacture of dutiable goods. If the interpretation of the Revenue is accepted, then the Cenvat credit of part of input service even though used in the manufacture of dutiable goods, shall stand disallowed, which is not provided under any of the Rule of Cenvat Credit Rules, 2004. xxxxx 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRU dated February 29, 2016 clarified as follows: (h) Rule 6 of Cenvat Credit Rules which provides for reversal of credit in respect of inputs and input services used in manufacture of exempted goods or for provision of exempted services, is being redrafted with the objective of simplifying and rationalizing the same without altering the established principles of reversal of such credit. 16. From the above, it is apparent that the amendment made is of clarificatory nature and the principles of reversal of credit remains the same. , in Dell International Services India Pvt Ltd v. Commissioner of Central Excise Service Tax, Bangalore LTU [2020 (7) TMI 264 CESTAT BANGALORE] holding that 10.9. Learned counsel further st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the term total Cenvat credit provided in the formula in Rule 6(3A)(b)(ii). According to the Department, the total Cenvat credit should include even those services used exclusively in taxable services, including the common service while according to the appellant it should include only common input services and services used in exempted services and not the services used exclusively in rendering taxable output service. 18. It would be clear from a conjoint reading of sub-rules 6(1), (2) and (3) of Rule 6 that the total Cenvat credit for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and cannot include Cenvat credit on input service exclusively used for the manufacture of dutiable goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions made by both the sides and perused the record. The limited issue to be decided in this case is that for the purpose of calculating the CENVAT credit for reversal in terms of rule 6(3A) as per of formula given therein, whether the total Cenvat credit means it is including the Cenvat credit of input services exclusively used for dutiable product should be taken or total Cenvat credit of only common input service should be taken. Before proceeding, it is necessary to read the relevant Rule 6(1), (2), (3) pre and post-amendment notification 10. From the above it can be seen that when anomaly was noticed, the Government has substituted the sub-rule (3A). The legislators very consciously substituted the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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