TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 767
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....it Rules, 2004 of maintaining separate records of consumption of 'advertisement services', rendering proportionate reversal to be insufficient compliance thereof. 2. The impugned order [order-in-original no. GOA-EXCUS-000-COM-011-2014-15 dated 27th February 2015] of Commissioner of Central Excise segregated the demands as Rs. 99,59,147 pertaining to the period prior to 1st April 2011, when 'trading' was legislated in as 'exempt service' by insertion of Explanation in rule 2 (e) of CENVAT Credit Rules, 2004 and Rs. 1,89,22,839 for the remaining one year but, while upholding the eligibility of entire tax paid on procurement of 'advertising service' for availment as CENVAT credit, confirmed recovery only for 2011-12 owing to non-maintenance of separate records of consumption after 'trading' was deemed, by law, to be 'exempted service' warranting, in the absence of recourse to specified alternatives, reversal at the rate specified in rule 6(3) of CENVAT Credit Ruled, 2004. The assessee is aggrieved by fastening of such rate on the value of 'traded goods' while the jurisdictional Commissioner of Central Excise, aggrieved by the finding that credit attributable to 'exempted service' was....
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....roviding for manner of distribution of credit. Reliance was placed on the decision of a Larger Bench of the Tribunal in Krishna Food Products v. Additional Commissioner of CGST & Central Excise [2021 (5) TMI 906 - CESTAT NEW DELHI], in Krishna Food Products v. Additional Commissioner of CGST & Central Excise [2021 (7) TMI 296 - CESTAT NEW DELHI], in Sweety Industries v. Commissioner of Central Excise [2024 (2) TMI 768 - CESTAT], in Ajmer Food Products Pvt Ltd v. Commissioner, CGST [2023 (5) TMI 1129 - CESTAT] and in Shahi Food Products v. Commissioner, CGST [2022 (10) TMI 1075 - CESTAT]. 5. That, prior to 1st April 2012, there was no restriction of pro rata distribution of credit was the submission of Learned Counsel for which reliance was placed on the decision of the Tribunal in ECOF Industries v. Commissioner of Central Excise [2010 (17) STR 515 (T)] which found affirmation in decision of the Hon'ble High Court of Karnataka in Commissioner of Central Excise v. ECOF Industries [2011 (271) ELT 58 (Kar)]. In addition, Learned Counsel submitted that, in the light of the decision of the Hon'ble High Court of Bombay in Commissioner of Central Excise v. Ultratech Cement Ltd [2010 (20)....
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....e same view was expressed by the Supreme Court in Martin Lottery. The Supreme Court, in effect, held that the use of the phrases, 'it is hereby declared' or 'removal of doubts', in itself will not enable a presumption to be drawn that the Explanation is retrospective. 20. The Tribunal in Trent Hypermarket, while dealing with the definition of 'exempted service' under rule 2(e) of the Credit Rules, held that trading cannot be treated as an 'exempted service' for the period prior to 1-4-2011 and the Explanation added on 1-4-2011 was prospective and not retrospective. The relevant portion of the decision is reproduced below: "5.5 It is evident from the amending provisions of Cenvat statute w.e.f. 1-3-2011 that a substantive law was enacted to consider the activities of trading as an exempted service. Now the issue remains for resolution, as to whether, such amendment in the statutory provisions is to be construed as retrospective in effect or prospective, in order to be given effect to. In this context, the law is amply clear that if a substantive law is introduced, the date of effect of the instrument through which the decision of legislation was c....
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....nufactured by them was concerned. 8. The sweep of the arguments on behalf of appellant-assessee, to the extent that it attempted to counter the proposal for retrospective applicability of the finding that is under dispute in their appeal, is understandable. However, it was puzzling to take note that several propositions that were neither concerned with the dispute nor, indeed, anything other than settled law were vehemently made in their submissions. Indeed, in the light of the amendment incorporating 'trading' as 'exempted service' and settled law on its enforceability with effect from 1st April 2011, the appellant-assessee was restricted in relief sought to the most appropriate method of neutralizing that portion of credit of tax paid on procurement of 'advertising services' attributable to value of the goods supplied by their 'contract manufacturers' to them during 2011-12. 9. It is within that appreciation of the dispute remaining that we were unable to contextualize the submission that the definition of 'input service', notwithstanding the amendment therein for exclusion of expressions, did not exclude 'advertising services'; that was not a finding in the impugned order and ....
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....1. Further, the appellant-assessee has stood the principle established in re Krishna Food Products on its head. We are afraid that this proposition has no basis in law: both Central Excise Act, 1944 and Finance Act, 1944 are separate enactments with distinct taxable events and even objects of the levy with 'manufacturer' in one and 'provider' in the other are mutually exclusive entities and, though levy and 'person liable to tax' in both are referred to CENVAT Credit Rules, 2004, such Rules are not the foundation of a bridge between the two and a statutory instrument cannot alter the contours of enacted law. Under Central Excise Act, 1944, any entity undertaking manufacture is the 'manufacturer' and flexibility in discharge of duty liability by 'principal manufacturer' neither alters the taxable event nor the person with default responsibility for discharge of tax; it may at best be attuning to business arrangement through notification or rules. Therefore, the facilitation of credit availment or even the provisions for valuation of excisable goods cannot distort section 3 of Central Excise Act, 1944. The assessee is not a manufacturer of goods manufactured outside their factory and....