2019 (2) TMI 437

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....bruary 2013 vide IAR No.1380/2013 for the period 2011-2012, it was observed that trading goods are exempted goods and they have not maintained separate accounts in respect of dutiable goods as well as exempted goods and therefore as per Rule 6(3) of CCR, 2004, the Appellants are required to pay an amount equal to 5% of value of exempted services i.e. value of trading goods provided, if they have availed the option not to maintain separate accounts. Thus a Show Cause Notice dated 26.4.2016 was issued proposing recovery from them being 5% as the value of traded goods (exempted goods) under Rule 14 of the Cenvat Credit Rules, 2004 r/w Section 11A(4) of the Central Excise Act, 1944 alongwith interest at applicable rate on the above amount u/s. ....

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.... decide the quantum of penalty as if the Cenvat Credit alongwith interest is reversed there is no question of penalty. The Appellants had relied upon the judgement in the case of Commissioner of Central Excise & Customs Vs Precot Meridian Ltd. reported in 2015 (325) ELT 234 (SC). Thus, the appellant has prayed for setting aside of penalty as imposed. Though has not objected the remand for ascertaining the reversible cenvat credit based on the documents as directed to be produced before adjudicating authority below. 5. Department on the other hand has justified the order and prayed for dismissal of appeal. 6. After hearing and perusing record, it is observed as follows:- The Appellants have availed and utilized cenvat credit on comm....

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....of goods as used in entry of the 7th schedule to the constitution was treated to have carried the same meaning as in the Sale of Goods Act, 1930, coupled with subsequent decisions of the Hon'ble Supreme Court were the prelude to passage of such an amendment act that suitably amended tax on the sale or purchase of goods and included the same in Article 366 of the Constitution of India under a new Article (29A). 9. From a bare reading of the definition and provision mentioned above, it is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning tra....