2018 (6) TMI 193

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.... liability utilized in excess of due credit by the appellant during the period April, 2004 to December, 2004. From the records, it transpires that appellant is a service provider who provides exempted as well as taxable and does not maintained separate accounts for the said services for the indeed services. As per the provisions of Rule 6(3) (c), during the relevant period appellant is required to utilized only 20% of the amount of the service tax payable from the CENVAT credit. It is the case of the Revenue that during the month of September, 2004 to December, 2004 appellant has utilized CENVAT credit in excess of 20% of the service tax payable. The Adjudicating Authority has upheld the allegations made in the show cause notice. 4. Lear....

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....dit. We also find strong force from contentions raised by the Learned Chartered Accountant in respect of the very same assessee having been decided as early as 17.02.2009 and followed again in July, 2016. We reproduce the findings of the Bench in order dated 17.02.2009 in paragraph No. 4.2. "4.2 The Appellant have pleaded that if the 20% ceiling on utilization is applied only to credit of services other than the services covered by Rule 6(5) and credit of inputs goods other than capital goods, utilization of credit for payment of service tax, in excess of the ceiling has taken place only in January 2005, March 2005 and May 2005 and this excess utilized credit cannot be demanded as Rule 6(3) (c) is silent with regard to the period during ....

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....tical issue in respect of the very same assessee has been decided by two Division Benches. We do not find any reason to deviate from such a view already taken. Accordingly, we hold that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed with consequential reliefs if any. (Order dictated & pronounced in open court) ============= Document 1 + rule (5) IDEA CELLULAR LTD CENVAT UTILIZATION WORKING Please Note that, idea has not provided any exempted services, however if we apply 35% / 20% celling limits against Input service utilization following are the summary of observations in figures (17 (2) (4) Month Service Tax payable ....