CESTAT, NEW DELHI BENCH
Commissioner of Central Excise
FINAL ORDER nos. 107 of 2012 SM (BR), S-117 of 2012 & M-39 of 2012 SM (BR)
ST/COD/301 of 2011 & ST/Stay/2651 of 2011
Appeal No. ST/1256 of 2011
FEBRUARY 2, 2012
1. In this case, there is a delay of seven days in filing the appeal. For the reasons explained in the COD application, the delay is condoned.
2. The case of Revenue in the appeal is that BSNL was providing both taxable services and exempted services and therefore, they should have utilized cenvat credit available to them only to the extent of 20% of the tax payable as provided in Rule 6(3)(c) of Cenvat Credit Rules,2004. Based on this argument, an amount of Rs. 3,96,810/- is confirmed for the period October, 2005 to March, 2006.
3. The submission of the learned Counsel for the appellants is that the credit is mostly in respect of capital goods only and there is only a small portion of credit attributable to input services. He submits that the portion of Rule 6(3)(c) will apply only in respect of credit taken in respect of inputs and input services and not capital goods. When such credit alone is considered, the utilization is well within the prescribed limit in the said Rule and therefore, demand is not maintainable.
4. On perusal of the record, it is seen that this plea had not been taken at the adjudication proceedings or appellate proceedings stage. The decision on this issue in the case of another service provider came later. Therefore, I waive the requirement of pre-deposit for admission of appeal and I proceed to dispose of the appeal itself with the consent of both the sides.
5. The factual submission that credit is mostly in respect of capital goods needs to be verified by the adjudicating authority. Therefore, the impugned order is set aside and the matter is remanded for verification of this fact and decision on the dispute based on the decision of the Tribunal in the case of BSNL v. CCE [Stay Order No. ST/23/2010, dated 18-1-2010] .
6. Thus the stay petition and appeal are disposed of.