TaxTMI 
TaxTMI 
2021 (11) TMI 339
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....ule 6 of the Cenvat Credit Rules, 2004 for the period 2011-12 to 2014-15, along with interest and imposition of penalty as proposed in the show cause notice dated 17/10/2016. 2. Briefly stated, the facts of the case are that the Appellant is engaged in the business of trading of goods and runs various retail stores as franchise of M/s.Titan Industries Limited. It is also engaged in provision of 'maintenance and repair services' along with 'Business support service' for one of it store located at Mani Square Mall wherein it operates the store under an agreement with M/s.Titan Industries Limited. As per the letter of intent dated 26/06/2007 issued by Titan to the Appellant, the Appellant would be entitled to recover the rental and maintena....
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....per Rule 6 of the Cenvat credit Rules, 2004 (CCR 2004) as the Appellant was engaged in both provision of service as well as trading of goods which was an exempt service and hence the show cause notice was issued demanding 6% of the trading turnover as ineligible Cenvat credit availed by the Appellant during the period under dispute. The said SCN dated 17/10/2016 culminated into the impugned order. Hence the present appeal before the Tribunal. 3. Shri Ankit Kanodia, the learned Advocate, appeared on behalf of the appellant. He submitted that the present dispute is only in respect of the fact whether the Appellant is at all required to reverse any Cenvat credit under Rule 6 of the CCR, 2004 as confirmed by the Adjudicating Authority when t....
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....oportionate reversal under Rule 6 is called for, the same has to be restricted to the turnover of its Mani Square unit only and the entire turnover as per the balance sheet for the period under dispute cannot be resorted to. He thus states that the lower authorities have erred in confirmation of the demand and the entire calculation is also incorrect as per the submission of the learned Advocate. He also relied on the following decisions in his support: a. M/s CASTROL INDIA LTD Vs COMMISSIONER OF CGST & CX, KOLKATA SOUTH COMMISSIONERATE 2021-TIOL-405-CESTATKOL b. ETRANS SOLUTIONS PVT. LTD. Versus COMMR. OF CGST & C. EX., BBSR, KOLKATA 2020 (372) E.L.T. 867 (Tri. - Kolkata). c. FABWORTH (I) LIMITED Versus COMMIS....
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....liability for its Mani Square unit. It is also submitted that the Anti Evasion wing had issued the captioned SCN without any investigation while the service tax audit wing had conducted a detailed scrutiny of the entire records of the Appellant and arrived at the said conclusion that the Cenvat credit of the Appellant is eligible to be availed. He thus states that extended period of limitation cannot be invoked in the case of the Appellant and the entire demand is liable to be dropped on this ground alone. 4. Shri T. Mondal, learned Authorized Representative for the Respondent Revenue, while supporting the impugned order passed by the Commissioner, reiterated the findings made therein. 5. Heard both sides through video conferencing an....
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.... not opt any of the option at a particular time, then option of payment of 5% will automatically be applied. Therefore, we do not understand that when the appellant have categorically by way of their intimation opted for option provided under sub-rule (3)(ii), how Revenue can insist that option (3)(i) under Rule 6 should be followed by the assessee." In the instant case of the Appellant, it is not disputed by the Revenue that the Appellant has availed Cenvat credit only to the extent of Rs. Rs. 41,17,269/- during the period under dispute. Hence, we are of the opinion that the demand as confirmed by the Adjudicating Authority cannot be sustained at all. 6.2 We further observe that the prayer of the Appellant regarding the calculation o....
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.... Cenvat credit under Rule 6 of CCR 2004 by invoking extended period of limitation cannot be sustained. In this regard we rely on the judgment of M/s CASTROL INDIA LTD Vs COMMISSIONER OF CGST & CX, KOLKATA SOUTH COMMISSIONERATE 2021-TIOL-405-CESTAT-KOL wherein it was held as under:- "9. The learned Counsel has also argued on the ground of limitation. The appellants have been issued show cause notices for earlier periods on identical issue. The appellants have disclosed the credit availed in the returns filed by them. They had submitted all the documents called for by the department and I do not find any evidence to saddle the appellants with willful suppression of facts with intention to evade payment of duty. It is also noted that ....