TaxTMI 
TaxTMI 
2019 (2) TMI 943
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....admitted for hearing on the following substantial question of law: i) Whether in the facts and circumstances of the case, CENVAT credit of service tax paid on input services like Banking, Auditing, Security services etc. can be denied under value added tax, CENVAT Credit Rules, 2004 prior to 1.4.2011 read with notification No.3/2011 dated 1.3.2011 on the ground that specified services were exclusively under for traded goods? ii) Whether extended period can be applied on the matters of interpretation, and applicability of CENVAT Credit Rules, 2004 admissibility wherein no intention to evade payment of duty coupled with suppression, fraud, mis-statement, collusion is in existence as required under section 11A of the Central ....
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....t of duty, nor there was any fraud, collusion, willful misstatement, suppression to attract extended period u/s.11A. The demand was confirmed in entirety along with penalty of Rs. 10,000 vide order in original 26/2011 dated 7.3.2011. Appellant preferred appeal, which was dismissed by the CESTAT vide order dated 16.10.2017. Shri Arjun Singh, learned counsel for the appellant has argued that the matter is of interpretation whether amendment introduced vide notification no.3/2011 dated 1.3.2011, whereby trading activity is a declared service or not, will be prospective/retrospective and will be taken as clarificatory notification or not is a matter of interpretation and not of suppression, fraud, misstatement coupled with intention to evade....
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....laced on the judgement of Apex Court in 40 ELT page 276, 216 ELT 177 (SC), 189 ELT 257, 235 ELT 577 SC. Shri Sandeep Pathak, learned counsel for the respondent opposed the appeal. As regards the first substantial question of law framed by the appellant, it is submitted that in accordance with the CENVAT Credit Rules, 2004, CENVAT Credit can only be availed on "input services" as defined in Rule 2(1), being services used in the process of manufacture of dutiable goods. The appellant was engaged in manufacture of goods as well as dealing in traded good but was maintaining same account for both traded as well as manufactured goods. Further, CENVAT Credit was being availed by the appellant on all such goods. The Supreme Court in the case of ....
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....ted 07.02.2011, the appellant was asked to submit details regarding service tax paid. However, the information sought from the appellant was never provided. It is further submitted that the appellant has nowhere pleaded that they were unaware about the provisions regarding CENVAT Credit. As such they were well aware that CENVAT Credit could only be availed with respect to good manufactured by the assessee. The appellant has availed CENVAT Credit on services utilized with respect to traded goods, which is in gross violation of the CENVAT Credit Rules, 2004. Therefore, in view of the provisions of the CENVAT Credit Rules, 2004, Central Excise Act, 1944 and the judgment passed by the Supreme Court, it is submitted that extended period of limit....
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....cating authority held that it had three different parts. The first part i.e. "used by provider of taxable service for providing an output service" was not applicable in this case. The second part of the definition stipulates that it was "used by the manufacturer from place of removal." It was held that any service used by the manufacturer, whether directly or indirectly in or in relation to the manufacture of final product and clearance of final product from/upto the place of removal is eligible to be called input service. The specified input service would become eligible for credit only in respect of final product manufactured by the assessee. The appellant aggrieved by the aforesaid order of the Commissioner of Central Excise, Jaipur a....
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....We note that legal fiction given in the Explanation in order to remove doubts was introduced on 1.4.2011. Even if it is considered that trading is not an exempted service, it is also a fact that it cannot be considered as a service within the scope of Finance Act, 1994 during the material time. Even in such situation, the appellants cannot take credit on input services, which are utilized for trading activity. As trading is neither a service nor an exempted service during the material time, the appellants are not covered by the Cenvat Credit Scheme with reference to such activity. In such situation, their arguments that there is no application of Rule 6 for account maintenance is not tenable. As it is clear that Cenvat Credit Scheme itself ....