CLR Editorial Notes: The case refers to an appeal made in the CESTAT against 3 show cause notices to the appellant, sent by the Commissioner for having availed CENVAT credit with respect to common services in the manufacture of dutiable as well as exempted final products, and proposal of the commissioner to deny the credit availed in respect of services on the ground that they have maintained separate account for the inputs. The CESTAT has ruled that the Commissioner has not taken into account Rule 6(3)(iii) of ther Cenvat Credit Rules.
In any case, it was found that the reasons adopted by the Commissioner that the assessee has not exercised his option are not correct inasmuch as there is no requirement of filing a declaration/ option for availing said rule (iii). The assessee’s stand was that they had filed an option, which the Commissioner had not taken note of. For these reasons, the CESTAT set aside the impugned order and remanded the matters back to the Commissioner for taking fresh decisions after considering the appellant’s stand of having maintained separate accounts for availing credit for the input services in the first two show cause notices and their plea that they are exempted by the provision of Rule 6(3)(iii). All the stay petitions and appeals get disposed of in above manner.
———————————
2013-ITS-164-CESTAT-M/s O.K. Play India Limited -Vs- CCE, Delhi-III , decision: 05.02.2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Date of Hearing/decision: 05.02.2013
Hon ble Ms. Archana Wadhwa, Member (Judicial)
Hon ble Shri Sahab Singh, Member (Technical)
Excise Stay Nos. 4137, 4138 & 4159 of 2012 and
Excise Appeal Nos. 3247, 3248 & 3260 of 2012
(Arising out of order in original No. 31-33/SA/CCE/2012 dated 23.07.2012 passed by the Commissioner of Central Excise, Delhi-III).
M/s O.K. Play India Limited Appellant
Vs.
CCE, Delhi-III Respondent
Appearance: Rep. by Ms. Reena Khair, Advocate for the appellant
Rep. by Shri A.K. Jain, Jt. CDR for the respondent.
CORAM: Hon ble Ms. Archana Wadhwa, Member (Judicial)
Hon ble Shri Sahab Singh, Member (Technical)
Stay Order No. 55931 55933 / 2013
Final Order No. 55468 55470 / 2013
Per Archana Wadhwa
After dispensing with the condition of pre-deposit in all the three matters, we proceed to decide the appeal itself.
2. After hearing both sides, we find that in all the three show cause notices were issued to the appellant. The first two show cause notice on the ground that the appellant have availed cenvat credit in respect of common services in the manufacture of dutiable as well as exempted final product. The appellants had taken a categorical stand before the adjudicating authority that they were maintaining separate records showing the receipt of services and their utilization in the manufacture of dutiable and exempted products. It is seen that the said plea of the appellant does not stand verified by the adjudicating authority, who has confirmed the demand in terms of the provision of Rule 6(3)(b) of Cenvat Credit Rules.
3. The third show cause notice proposes to deny the credit availed in respect of services on the ground that they have maintained separate account for the inputs, whereas they have availed credit in respect of input services in accordance with the formula prescribed in Rule 6(3)(a). The contention of the adjudicating authority is that such two alternative measures in respect of inputs and in respect of input services is not available to the applicant.
4. We find that the provision of Rule 6(3)(iii) were introduced w.e.f. 01.03.2011 allowing the assessee to adopt the above modus operandi for availment of credit in respect of input credit as also in respect of input services. The adjudicating authority has not allowed the benefit of the said provision on the ground that the assessee is to either maintain the separate account for both the items i.e. input and input services. He has further held that the appellant has not also exercised an option to avail the benefit of the said sub-rule (iii) of Rule 6(a).
5. On going through the provision of Rule 6(3)(iii), we find that an assessee can maintain separate accounts for the input and pay an amount determined under Rule 3(a) in respect of input services. The said rule does not stand taken note of by the Commissioner. In any case, we find that the reasons adopted by the Commissioner that the assessee has not exercised his option are not correct inasmuch as there is no requirement of filing a declaration/ option for availing said rule (iii). In any case, it is the assessee s stand that they have filed an option, which the Commissioner has not taken note of. For the reasons recorded above, we set aside the impugned order and remand the matters back to the Commissioner for fresh decision after taking into account the appellant s stand that they have maintained separate account for availing the credit for the input services in the first two show cause notices and their plea that they are exempted by the provision of Rule 6(3)(iii). All the stay petitions and appeals get disposed of in above manner.
