2018 (11) TMI 831

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....n (Servicing of Motor Vehicles)' and 'Business Auxiliary Service'. Pursuance to the Department audit, an audit observation was issued demanding service tax on various issues such as service tax on DSE incentive, Registration Fee, Cancellation Charges and Legal Fee paid to advocate. Sl.No. Appeal No. Period 1. ST/76239/2018 (Order-in-Appeal No.19/ST/BBSR-GST/2018 dated 30.01.2018) 2008-09 2012-2013 2. ST/76238/2018 (Order-in-Appeal No.20/ST/BBSR-GST/2018 dated 30.01.2018) 2013-2014 2. Appeal No.ST/76239/2018 During the period 2008-09 to 2012-2013 the appellant has availed cenvat credit amounting to Rs. 21,05,711/- on common input services against which they have utilized cenvat credit amounting to Rs. 20,5....

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....y cannot be made retrospectively applicable. It is also observed that the appellant has reversed back the amount of common input service credit availed by them. 8. I find that the appellant has availed CENVAT credit amounting to Rs. 21,05,711/- (but Credit utilized Rs. 20,50,586/-)on common input services and yearly summary is extracted hereinunder: Year Cenvat Amount 2008-09 219,082 2009-10 190,121 2010-11 359,565 2011-12 502,278 2012-13 834,666   21,05,712 9. I find that for the period upto 01.04.2011, 100% CENVAT credit is available for certain services as per Rule 6(5) of the CENVAT Credit Rules, 2004. Trading was not included in 'Exempted Service' upto 31-03-2011 and prior to that th....

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...."exempted services includes trading" 12. In support of his submissions, the ld. Advocate referred to the decision of the Hon'ble Supreme Court in the case of, Union of India v. Martin Lottery Agencies Ltd. reported in [2009 (14) S.T.R. 593 (S.C.)]. Apex Court held that if a substantive law is introduced, it will not have retrospective effect. In the aforesaid case, the Honorable Supreme Court held that a new concept of tax is introduced so as to widen the net, it should not be construed to have a retrospective effect on the premise that it is clarificatory or declaratory in nature. The Appellant submitted that demand for the period prior to 01.04.2011 should be set aside accordingly since the appellant is eligible for the CENVAT Credit f....

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.... both taxable as well as for exempted. 1,31,491 C CENVAT availed on input Services which were exclusively used for taxable service (like services relating to training of staff of service centre etc.) 5,26,214 D Amount of CENVAT availed on common (A-B-C) 8,19,556 M 10% of COGS (as per Exp I to Rule 6(3D)(already explained in para B) 6,85,81,782 N Taxable= 4,53,72,966, Exempted= 6,85,81,782 11,39,54,748 O CENVAT Credit Reversed (M/N) x D (Already paid with int.) 4,93,236 P Common Eligible CENVAT Credit [D - O] 3,26,320 Q Total Eligible Credit B + C + P 9,84,025 14. In view of the above discussions the credit of the service tax paid on the services as enumerated under Rule 6(....