Trident Automobiles Pvt. Ltd vs Commissioner Of Service Tax Bangalore
- CitationAppeal No. 349/2013 dated 26/08/2013 passed by the Commissioner of Central Excise, Bangalo
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) may not dismiss an appeal for non-compliance with a stay order where the amount directed to be deposited includes credit that the assessee was entitled to take under Rule 6(5) of the Cenvat Credit Rules as it stood before its omission with effect from 01.04.2011, where the credit was used in taxable services and trading activity and not exclusively in relation to exempted goods or services; the assessee's pre-deposit obligation is confined to the balance not covered by that entitlement, and the appeal is to be decided on merits once that balance is deposited and compliance is reported.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 349/2013 dated 26/08/2013 passed by the Commissioner of Central Excise, Bangalore]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Trident Automobiles Pvt. Ltd. No.1, Lower Orchards, Sankey Road, Bangalore 560 003 Karnataka Appellant(s)
Versus Commissioner of Service Tax Bangalore 1st To 5th Floor, TTMC Building, Above BMTC Bus Stand, Domlur Bangalore 560 071 Karnataka Respondent(s)
Appearance:
Mr. Rajesh Kumar, CA Hiregange & Associates #1010, 1st floor (Above Corp. Bank) 26th Main, 4th T Block, Jayanagar, Bangalore 560 041 Karnataka For the Appellant
Mr. Pakshi Rajan, AR For the Respondent
Date of Hearing: 29/01/2015 Date of Decision: 29/01/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order No. 20159 / 2015
Per: ARCHANA WADHWA
After hearing both the sides, we find that the Commissioner (Appeals) dismissed the appeal for non-compliance with the Stay Order passed by him vide which the appellant was directed to deposit the entire service tax of Rs. 20,31,352/- (Rupees Twenty Lakhs Thirty One Thousand Three Hundred and Fifty Two only) as also 50% of the penalty amount. The said credit stands denied to the appellant on the ground that the same has been used in providing output services as also trading activity.
2. Learned advocate draws our attention to the provisions of Rule 6(5) of Cenvat Credit Rules, as available prior to 01.04.2011 vide which the entire credit of the service tax paid on taxable services shall be allowed unless such service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted services. As such he submits that prior to the omission of the said Rule w.e.f. 01.04.2011, the assessee was entitled to the benefit of the entire cenvat credit, which was used in taxable services, output services as also in trading activities. The said amount would be to the extent of Rs. 17,00,000/- (Rupees Seventeen Lakhs only) and he agrees that the balance Rs. 4,00,000/- (Rupees Four Lakhs only) is required to be deposited by him at this prima facie stage.
3. In view of the foregoing we direct the appellant to deposit an amount of Rs. 4,00,000/- (Rupees Four Lakhs only) within a period of eight weeks from today and report compliance to Commissioner (Appeals) who would decide the appeal on merits, after ascertaining compliance with the Stay Order. Stay petition as also appeal gets disposed of in the above manner.
(Order pronounced and dictated in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER
iss
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