TaxTMI 
TaxTMI 
2017 (6) TMI 667
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....er connectivity services) for which the concerned telephone service providers are charged IUC charges, Tap ut charges and mobile terminating charges and of permitting the used their infrastructure like BTS towers etc. for other mobile telephone service provide and infrastructure utilizing charges by the appellant. 3. In these set of facts the show cause notice was issued by invoking the provisions of Rule 6 (3) (c), of the Cenvat Credit Rules, 2004 for restricting utilization of Cenvat credit for payment of service tax up to 20% of the Cenvat credit. The matter was adjudicated and demand for the period of April, 2007 to May, 2007 was confirmed along with interest and equivalent penalty was also imposed. Aggrieved from the said order appellants are before us. 4. The Ld. Counsel for the appellants in their own case for the previous period this Tribunal has examined the issue in the case of Idea Cellular Ltd. Vs. CCE, Rohtak - 2009- (16) S.T.R. 712 (Tri.-Del.) and remanded the matter back to the Adjudicating Authority for recalculation. Therefore, he prayed that if the observation in their own case for the previous period has been considered, in that circumst....
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....iders are charged "IUC charges", "Tap out charges" and "Mobile terminating charge" and of "permitting the use of their infrastructure like BTS towers etc. by other mobile telephone service provides" for which they are charged "Infrastructure user charge" by the Appellant. Since the Appellant have utilized the Cenvat credit for payment of service tax on the taxable output service without keeping in mind the restriction provided in Rule 6(3)(c), the Commissioner vide the impugned orders-in-original No. 12/Commr/SU/08/S.T., dated 24.03.08 and No. 14/Commr/SU/08/S.T., dated 02.04.08 has- (a) confirmed Cenvat credit demands of Rs. 3,10,84,357/- and Rs. 7,36,40,470/- respectively for periods from October 2004 to September 2006 and Obtober 2006 to March 2007 respectively under Rule 14 of Cenvat Credit Rules, 2004 readwith Section 73(1) of the Finance Act, 1994 alongwith interest on this amount at the applicable rate; and (b) imposed penalties of Rs. 3,10,84,357/- and Rs. 7,36,40,470/- on the Appellant under Rule 15 of the Cenvat Credit rules, 2004 readwith Section 78 of the Finance Act, 199. It is against these orders that these two appeals have been filed. ....
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....there will be no penalty against the appellants. With these terms, the appeal is disposed off. (Dictated and pronounced in the open court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) PER: DEVENDER SINGH The appellants are holding Service Tax Registration for providing telephone service. They are availing the Cenvat credit of service tax paid on input service and Central Excise duty paid on inputs and capital goods and are utilizing the Cenvat credit availed towards payment of service tax. The allegation of the department is that the appellants are providing taxable as well as exempted service viz. IUC charges, Tap out charges, Mobile Terminating charges on which they are not paying any service tax. The exempted service viz. IUC charges, Tap out charges, Mobile Terminating charges are being provided to other telephone service providers. Since they are not maintaining separate accounts of Cenvat credit availed on input service, inputs and capital goods and were utilizing more than amount 20% of Cenvat credit for payment of service tax show cause notices were issued ....
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....ods as well as 'exempted goods', the capital goods Cenvat credit shall be available ; (b) In terms of the provisions of sub-rule (5) of Rule 6 of Cenvat Credit Rules 2004, service tax credit in respect of 17 input services specified in this sub-rule shall be available unless such services are used exclusively in or in relation to providing "exempted service" or manufacture of 'exempted goods', implying that in a situation when these services are used for providing non exempt taxable services as well as 'exempted services', or for manufacture of non-exempt dutiable goods as well as 'exempted goods' the credit will be available; and (c) Tribunal in its judgment in case of CCE, Goa v. V.M. Salgaonkar & Bros. Pvt. Ltd. (supra) with regard to provisions of Rule 6(3)(c) has held that if an assessee being eligible for some Cenvat service credit takes the credit, he should be allowed to utilize the same, as there is no reason for allowing some credit and not permitting its utilization. 4.1 We also find that the Board in its Circular No. 137/203/2007-CX-4 dated 1-10-07 has clarified as under - "The basic purpose of identifying 17 ....