M\/s. Pearl Drinks Ltd. Versus CGST, C.C. & C.E., Delhi-II
Central Excise
2019 (2) TMI 437 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 5-2-2019
E\/52220\/2018-EX [SM] – Final ORDER NO. 50187\/2019
Central Excise
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
\nPresent for the Appellant : Ms. Kiran Doiponode, Advocate
\nPresent for the Respondent: Mr.P.R. Gupta, D.R.
\nORDER
\nPER: RACHNA GUPTA
\nThe Appellants herein M\/s. Pearl Drinks Ltd., were engaged in the manufacture of aerated waters, beverages syrup and mango slices as well as in trading of goods i.e. trading of Aquafina. During the course of Audit conducted by Audit Group, Central Excise, Delhi-I on 18th, 19th, 21st, and 22nd February 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 <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 3198\/- on the Appellants. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n cenvat credit, the Appellants considered that the trading goods will be 10% and accordingly they have availed only 90% of service tax on common inputs services. sometimes, they have availed only 78% input service tax credit and sometimes 92% input credit was availed. During the year 2011-2012 the total service tax available as input credit was Rs. 1,19,63,278\/- but the Appellants have availed only Rs. 1,07,66,950\/- and did not avail Rs. 11,96,328\/-. This is apparent from the chart submitted in reply to the Show Cause Notice showing that input service tax credit pertains to transport, courier service, maintenance, repair, etc. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarificatory in nature, as definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition, sale of goods; be it made in the high sea or within the territorial boundary of India in which Finance Act, 1994 has its force, cannot be called a service to impose tax liability or deny the credit under Rule 6 of Cenvat Credit Rules. Hon‟ble High Court at Madras in the case of Ruchika Global Interlinks vs. CESTAT, Chennai reported in 2017 (5) GSTL 225 (Mad.) has held as follows:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Pearl Drinks Ltd. Versus CGST, C.C. & C.E., Delhi-IICentral Excise2019 (2) TMI 437 – CESTAT NEW DELHI – TMICESTAT NEW DELHI – ATDated:- 5-2-2019E\/52220\/2018-EX [SM] – Final ORDER NO. 50187\/2019Central ExciseMRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant : Ms. Kiran Doiponode, Advocate Present for the Respondent: Mr.P.R. Gupta, D.R. ORDER PER: RACHNA … Continue reading “M\/s. Pearl Drinks Ltd. Versus CGST, C.C. & C.E., Delhi-II”<\/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-16672","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16672","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=16672"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16672\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16672"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16672"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16672"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n2. Being aggrieved by the Order-In-Original dtd 28.12.2017 the Appellants filed the Appeal before the Ld. Commissioner Central Tax, Appeals-II , Delhi, holding that the Appellants are entitled to reverse the Cenvat Credit under Rule 6(3A) of the Cenvat Credit Rules, 2004 but remanded the case back to the Adjudicating Authority for ascertaining the quantum of reversible Cenvat Credit after examining the documentary evidence produced by the Appellants. He further held that after ascertaining the quantum of Cenvat Credit reversible by the Appellants, original Adjudicating Authority will decide the quantum of penalty.
\n3. Being aggrieved by the aforesaid Order-In-Appeal dtd. 28.03.2018 the Appellants prefer the present Appeal before this Tribunal.
\n4. I have heard both the parties. It is submitted on behalf of appellant that the Ld. Commissioner (Appeals) has erred in directing the original adjudicating authority to decide the quantum of penalty as if the Cenvat <\/p>\n
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\n7. I also observe that “Service” as defined under 65B (44) of the Finance Act, 1994 excludes (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution which was inserted vide passing of Constitution [Forty Sixth] Amendment Act, 1982.
\n8. Going by its Statement of Objects<\/p>\n
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\n “Both before and after amendment, “exempted services” meant those taxable services, which were exempt from whole of Service Tax and, included those services on which Service Tax was not leviable, under Section 66 of Finance Act, 1994. Inclusion in Explanation to Rule 2(e) of Cenvat Credit Rules, 2004 “trading” was only clarificat<\/p>\n
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