Page 191 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] ETRANS SOLUTIONS PVT. LTD. v. COMMR. OF CGST & C. EX., BBSR, KOLKATA 869

Rs. 6,94,356/-. On Appeal, filed before the Commissioner (Appeals) by the de-
partment the Ld. Commissioner (Appeals) allowed the department’s appeal and
rejected the adjudication order on this issue. Hence, the present appeal before the
Tribunal by the appellant assessee.
3. Shri Ankit Kanodia, CA, appeared on behalf of the appellant and
Shri S.S. Chattopadhyay, AR appeared on behalf of the respondent department.
4. The Ld. CA appearing for the appellant submitted that the appellant
on being pointed by the department audit had reversed the proportionate Cenvat
credit availed on common input services used in provision of taxable service as
well as trading of goods along with appropriate interest and thus had made suf-
ficient compliance of Rule 6(3) of the Cenvat Credit Rules, 2004. He also submit-
ted copies of statements showing year-wise calculations of the common Cenvat
credit on input services and proportionate reversal done in this regard along
with a Chartered Accountant’s certificate certifying the submitted calculations. It
is his contention that the Ld. Commissioner (Appeals), without considering the
ratio of turnover from manufacturing activity vis-à-vis trading activity has mere-
ly confirmed the demand at 6% of the total exempted turnover i.e. trading of GPS
units which cannot be sustained and being completely perverse, the impugned
order is liable to be set aside.
5. He further submits that the Ld. Commissioner (Appeals), confirmed
the demand equivalent to 6% of the trading turnover despite admitting the fact
that the appellants have reversed the required credit along with interest, mainly
on the ground that the appellants have not complied with the condition and pro-
cedure laid down under Rule 6(3)(ii) read with Rule 6(3A) of Cenvat Credit
Rules. He states that since the appellant reversed the credit along with interest,
thus compliance of the procedure as laid down under Rule 6(3A) was duly made.
6. The Ld. CA also submits that it is not provided under the law that if
there is any procedure infraction in availing the option of Rule 6(3)(ii), the option
provided under Rule 6(3)(i) shall automatically apply. Two options have been
provided under the law to the assessee. It is a choice of the assessee which option
is to be availed. In the present case, the appellant admittedly availed the option
available under Rule 6(3)(ii) read with Rule 6(3A). Therefore, the department
cannot insist to avail the option of Rule 6(3)(i) and demand huge amount of
money which is otherwise not payable by the appellant, nor it is part of Cenvat
credit availed by the appellant. He submits that when the options have been
provided, the department has no say for choice of the assessee, the assessee who
has liberty to choose any of the option and therefore in the present case, the ap-
pellant has opted for the option available under Rule 6(3)(ii) of Cenvat Credit
Rules, therefore department has no role to decide regarding any other option
available in the Rules. He also refers to the adjudication order passed by the
same jurisdictional Commissioner vide Order-in-Original No. 2I/COMMR/ST-
II/KOL/2016-17, dated 21-6-2016 in respect of M/s. Anmol Biscuits Limited,
wherein involving identical facts, the Commissioner has dropped the proceed-
ings of the show cause notice. The said order was accepted by the Department
and no further appeal was filed against the order. He submits that in the same
Commissionerate two different yardsticks cannot be followed for two different
assessees. For this reason above, the impugned order is incorrect and illegal.
In support of his submissions, the Ld. CA has referred to decisions of the
Tribunal and the High Court in the case of (i) Jost Engineering Co. Ltd./Jaiprakash
EXCISE LAW TIMES  15th June 2020  191