M\/s. Sky Automobiles Versus Commissioner of CGST, BBSR
Service Tax
2018 (11) TMI 831 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 29-8-2018
ST\/76238 & 76239\/2018 – . FO\/76649-76650\/2018
Service Tax
Shri P.K.Choudhary, Member (Judicial)
\nShri Ravi Raghavan, Advocate & Shri Harsh Shukla, CA for the Appellant (s)
\nShri S.Mukhopahdyay, Suptd.(AR) for the Respondent (s)
\nORDER
\nPer Shri P.K.Choudhary
\nBriefly stated the facts of the case are that the appellants are engaged in the business of Authorized Dealer of Maruti Suzuki Four Wheeler and also providing services of authorized service station and is registered with the service tax under category of 'Authorized Service Station (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.
\nSl.No.\n<\/p>\n
= = = = = = = =<\/p>\n
Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n Rule 6(3)(c ) of the Rules on the said services. On this issue he relied upon the decision of the Tribunal in the case of CCE, Goa vs. V.M.Salgaonkar & Bros. Pvt. Ltd. [2008(10) STR 609(Tri.-Mum)]. Ld. Advocate also submits that they have reversed the credit amount in terms of Rule 6 of the Cenvat Credit Rules, 2004, however, this fact has not been accepted nor examined by the Department and the amount has been upheld without any verification. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n Rules, 2004 which clearly states that unless and until the input service is exclusively used for the provision of exempted service, it will be allowed in manner prescribed under Rule 6(3) of the CENVAT Credit Rules, 2004. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the provision of taxable or exempted services up to 31st March 2011. The table as submitted is being reproduced as under: = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n es as enumerated under Rule 6(5) of the Cenvat Credit Rules, 2004 are to be allowed. It can be noticed that Rule 6(5) starts of non-obstante clause 'notwithstanding', which would indicate that the provisions of Rule 6(3) are not applicable for the provisions of Rule 6(5) of Cenvat Credit Rules, 2004. It is undisputed that the service tax credit availed is on the services as mentioned in Rule 6(5), the credit of the entire whole amount of service tax has to the appellant. When the differential amount has been paid by appellants under Rule 6 of Cenvat Credit Rules, 2004 and discharged the service tax has pointed out by the department before issuance of the show cause notice. Under the provisions of 73(3) of the Finance Act, 1994, the proceedings should have been completed on payment of tax amount along with interest. The credit amount which has been reversed by the appellants has neither been accepted or examined by the department and the amount has been upheld without any verification. <\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Sky Automobiles Versus Commissioner of CGST, BBSRService Tax2018 (11) TMI 831 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 29-8-2018ST\/76238 & 76239\/2018 – . FO\/76649-76650\/2018Service TaxShri P.K.Choudhary, Member (Judicial) Shri Ravi Raghavan, Advocate & Shri Harsh Shukla, CA for the Appellant (s) Shri S.Mukhopahdyay, Suptd.(AR) for the Respondent (s) ORDER Per Shri P.K.Choudhary Briefly … Continue reading “M\/s. Sky Automobiles Versus Commissioner of CGST, BBSR”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-15037","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15037","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15037"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15037\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15037"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15037"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15037"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
For full text:-Visit the Source <\/a><\/p>\n
\n5. Ld. DR reiterates the orders of the lower authorities.
\n6. Heard both sides and perused the appeal records.
\n7. I find that the appellant has not denied the fact that they have been availing cenvat credit on the service tax paid on the common input services for trading goods. However, it has been contended that the trading of goods has come into the exempted category only since 31.03.2011 and therefore the explanation adding 'trading' in the exempted service category cannot be made retrospectively applicable. It is also observed that the appe<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\n11. It is submitted that for the purpose of Rule 6, exempted service provided by the appellant shall be the trading of goods by virtue of Rule 2(e) of the CENVAT Credit Rules as read with explanation (I) (c) to the said Rule. It is further, submitted that prior to 01.04.2011, trading of goods was not covered under the definition of exempted services, it was first introduced w.e.f. 01.04.2011 and at the time the exempted services were defined as:
\n“Exempted Services” means taxable services which are exempt from the whole of the service tax leviable thereon, and includes service on which no service tax is leviable under Section 66 of the Finance Act, 1994 and taxable services whose part of the value is exempted on the condition that no credit of inputs and input servi<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\nRelevant Rule
\n2008-09
\n2009-10
\n2010-11
\nTotal
\nOther than Rule 6(5)
\n67,923
\n35,236
\n166,601
\n269,761
\nRule 6(5)
\n151,158
\n154,885
\n192,963
\n499,007
\nGrand Total
\n2,19,082
\n1,90,121
\n3,59,565
\n7,68,768
\n13. I find from the details submitted, that based on the above computation, the Appellant have already reversed Rs. 4,93,236\/- as portion of Common CENVAT Credit attributable to both taxable as well as for trading activity in view of provision of Rule 6 of the CENVAT Credit Rules, 2004. The amount arrived as above has been deposited along with interest and copy of challans have also been submitted.
\nThe Appellant has submitted that during the FY 2013-14, the total amount of CENVAT credit availed by the appellant is Rs. 14,77,261\/- which includes CENVAT Credit of taxes paid on Capital Goods, Services exclusively used for taxable services and common input services.<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
For full text:-Visit the Source <\/a><\/p>\n