Practical discussion on Cenvat Credit
Rules
Institute of Chartered Accountants of India
CCE Alwar
December 16, 2015
Presented by:
CA Gaurav Gupta
FCA, LLB, DISA
Partner
MGS & Co.
Index
Cenvat Credit CA Gaurav Gupta 2
• Rule 2(m)
• Rule 3(5B)
• Rule 4(7)
• Rule 5
• Rule 6(3)
ISD
Reversal of Cenvat credit on value write off
Conditions for Credit on Input Services
Refund of Cenvat Credit
Cenvat Credit in case of both taxable and
exempted goods / services
Rule 2(m)
Rule 2(m) of the Cenvat Credit Rules, 2004 defines
“input service distributor” to mean
i. an office of the manufacturer; or
ii. an office of the producer of final products; or
iii. an office of the provider of output service,
which receives invoices issued under Rule 4A of the Service Tax
Rules, 1994 towards purchases of input services and issues
invoice, bill or, as the case may be, challan for the purposes of
distributing the credit of service tax paid on the said services to
such manufacturer or producer or provider, as the case may be.
Cenvat Credit MGS & Co. 3
• Even a branch engaged in procurement activity and which does
not qualify as a independent unit of the Company can act as an
input service distributor and can distribute Cenvat credit received
by it.
– ITC Ltd. v CCE, Bangalore [[2014] 42 taxmann.com 322
(Bangalore - CESTAT)].
Cenvat Credit CA Gaurav Gupta 4
Rule 2(m)
Manner of distribution of credit by input service distributor. — The input
service distributor may distribute the CENVAT credit in respect of the
service tax paid on the input service to its manufacturing units or units
providing output service, subject to the following conditions, namely :—
(a) the credit distributed against a document referred to in rule 9 does not
exceed the amount of service tax paid thereon;
(b) credit of service tax attributable to service used by one or more units
exclusively engaged in manufacture of exempted goods or providing of
exempted services shall not be distributed;
(c) credit of service tax attributable to service used wholly by a unit shall be
distributed only to that unit; and
(d) credit of service tax attributable to service used by more than one unit shall
be distributed pro rata on the basis of the turnover of such units during the
relevant period to the total turnover of all its units, which are operational in
the current year, during the said relevant period.
Cenvat Credit CA Gaurav Gupta 5
Rule 2(m)
Explanation 1. - For the purposes of this rule, “unit” includes the premises of a
provider of output service and the premises of a manufacturer including the
factory, whether registered or otherwise.
Explanation 2. - For the purposes of this rule, the total turnover shall be
determined in the same manner as determined under rule 5.
Explanation 3. - For the purposes of this rule, the ‘relevant period’ shall be, -
(a) If the assessee has turnover in the ‘financial year’ preceding to the year
during which credit is to be distributed for month or quarter, as the case
may be, the said financial year; or
(b) If the assessee does not have turnover for some or all the units in the
preceding financial year, the last quarter for which details of turnover of all
the units are available, previous to the month or quarter for which credit is
to be distributed.
Cenvat Credit CA Gaurav Gupta 6
Rule 2(m)
Mr A is an advertisement designer having offices in Delhi, Mumbai and
Chennai and a unit in Parwanoo, Himachal. While the first three offices are
engaged in designing of advertisement and providing taxable services, the
Himachal unit is engaged in manufacturing of advertisement material.
Cenvat Credit CA Gaurav Gupta 7
Rule 2(m)
Unit Particular Turnover of preceding
period
Delhi Advertisement designing 10,00,000
Mumbai Advertisement designing 15,00,000
Chennai Advertisement designing 25,00,000
Parwanoo Manufacture of exempted
goods
1,00,00,000
The following Cenvat credits were received vide invoices towards various
services provided by vendors in the different units at the head office at Delhi for
payment:
Cenvat Credit CA Gaurav Gupta 8
Rule 2(m)
Nature of service Unit receiving services Cenvat credit
Security services Delhi 10,000
Mumbai 5,000
Chennai 5,000
Parwanoo 5,500
Professionals serving
different units
Delhi 100,000
Mumbai 50,000
Chennai 25,000
Parwanoo 10,000
Audit All units 150,000
Total 360,500
In the above example, while distributing credit, Delhi HO has to take following
points into consideration:
• Delhi cannot distribute credit more than that received on a bill, thus, for eg.
In case of security services of Mumbai, the credit available for distribution
cannot excees Rs 5,000. Total credit cannot exceed Rs 360,500.
• Credit attributable to service exclusively used in Parwanoo cannot be
distributed as it is engaged in manufacture of exempted goods. Thus,
credit of Rs. 15,500 (5,500+10,000) cannot be distributed.
• Credit of service tax attributed exclusively to different units would go to
those units only. Thus, the exclusive credit as would be passed to units is
as follows:
Cenvat Credit CA Gaurav Gupta 9
Rule 2(m)
Unit Credit
Delhi 110,000
Mumbai 55,000
Chennai 30,000
In the above example, while distributing credit, Delhi HO has to take following
points into consideration:
• Delhi cannot distribute credit more than that received on a bill, thus, for eg.
In case of security services of Mumbai, the credit available for distribution
cannot excees Rs 5,000. Total credit cannot exceed Rs 360,500.
• Credit attributable to service exclusively used in Parwanoo cannot be
distributed as it is engaged in manufacture of exempted goods. Thus,
credit of Rs. 15,500 (5,500+10,000) cannot be distributed.
• Credit of service tax attributed exclusively to different units would go to
those units only. Thus, the exclusive credit as would be passed to units is
as follows:
Cenvat Credit CA Gaurav Gupta 10
Rule 2(m)
Unit Credit
Delhi 110,000
Mumbai 55,000
Chennai 30,000
• Common Credit shall be distributed pro rata on the basis of the turnover i.e.
credit on audit fee shall be attributed in proportion of their Turnovers shall
be as follows:
• Summary of credit distribution would be as follows:
Cenvat Credit CA Gaurav Gupta 11
Rule 2(m)
Unit Credit
Delhi 10,000 (10,00,000/15000000 x 150,000)
Mumbai 15,000 (15,00,000/15000000 x 150,000)
Chennai 25,000 (25,00,000/15000000 x 150,000)
Parwanoo 1,00,000 (100,00,000/15000000 x 150,000)
Total 150,000
Unit Not allowed Exclusive Common
Delhi 110,000 10,000
Mumbai 55,000 15,000
Chennai 30,000 25,000
Parwanoo 15,500 1,00,000
Total 15,000 195,000 150,000
• Can a unit which is not registered as Input Service Distributor but receives
input services distribute credit and rectify the registration later being
procedural error?
- Market Creators Ltd. v CCE - 2014 (36) S.T.R. 386 (Tri. - Ahmd.)
- Nitco Ltd. v CCE 2014 (34) S.T.R. 835 (Tri. - Mumbai)
• Can recovery of Tax be made from Input Service Distributor when Cenvat
has been wrongly availed?
- IOCL v CCE - 2014 (35) S.T.R. 411 (Tri. - Del.)
• Can a different entity pass on credit to another entity by registering as Input
Service Distributor when such credit is attributed to activities of such other
entity?
- Sunbell Alloys Co. v CCE&C 2014 (34) S.T.R. 597 (Tri. - Mumbai)
Cenvat Credit CA Gaurav Gupta 12
Rule 2(m)
• If the value of any,
(i) input, or
(ii) capital goods before being put to use,
• on which CENVAT credit has been taken is written off fully or partially or
where any provision to write off fully or partially has been made in the
books of account then, the manufacturer or service provider, as the case
may be, shall pay an amount equivalent to the CENVAT credit taken in
respect of the said input or capital goods :
Provided that if the said input or capital goods is subsequently used in the
manufacture of final products or the provision of output services, the
manufacturer or output service provider, as the case may be, shall be
entitled to take the credit of the amount equivalent to the CENVAT credit
paid earlier subject to the other provisions of these rules.
Cenvat Credit CA Gaurav Gupta 13
Rule 3(5B)
• No reversal required in certain situation
• Service provider removes any capital goods outside his premises for
providing the output service.
• The Cenvat Credit is allowable even if any capital goods are sent as such
or after being partially processed to a job worker for further processing,
testing, repair, reconditioning, etc. However, Cenvat Credit shall be allowed
only if it is established by the output service provider taking the Cenvat
Credit that the capital goods are received back within 180 days of their
being sent to a job worker.
Cenvat Credit CA Gaurav Gupta 14
Rule 3(5B)
• Reversal required for the bottle (input) when written off by the assessee as
destroyed in case of bottled beverage manufacturer - Circular No.
930/20/2010-CX, dated 9-7-2010
• Whether reversal is required for provision for write off of Work in progress?
- Circular No. 907/27/2009-CX., dated 7-12-2009
Cenvat Credit CA Gaurav Gupta 15
Rule 3(5B)
Rule 4(7) The CENVAT credit in respect of input service shall be allowed,
on or after the day on which the invoice, bill or, as the case may be, challan
referred to in rule 9 is received :
Provided that in respect of input service where whole of the service tax is
liable to be paid by the recipient of service, credit shall be allowed after the
service tax is paid :
Provided further that in respect of an input service, where the service
recipient is liable to pay a part of service tax and the service provider is
liable to pay the remaining part, the CENVAT credit in respect of such input
service shall be allowed on or after the day on which payment is made of
the value of input service and the service tax paid or payable as indicated in
invoice, bill or, as the case may be, challan referred to in rule 9 :
Cenvat Credit CA Gaurav Gupta 16
Rule 4(7)
Credit of
100%
reverse
charge
liability
Basic
Credit Rule
Credit of
partial
reverse
charge
Provided also that in case the payment of the value of input service and the
service tax paid or payable as indicated in the invoice, bill or, as the case
may be, challan referred to in rule 9, except in respect of input service
where the whole of the service tax is liable to be paid by the recipient of
service, is not made within three months of the date of the invoice, bill or,
as the case may be, challan, the manufacturer or the service provider who
has taken credit on such input service, shall pay an amount equal to the
CENVAT credit availed on such input service and in case the said payment
is made, the manufacturer or output service provider, as the case may be,
shall be entitled to take the credit of the amount equivalent to the CENVAT
credit paid earlier subject to the other provisions of these rules :
Provided also that if any payment or part thereof, made towards an input
service is refunded or a credit note is received by the manufacturer or the
service provider who has taken credit on such input service, he shall pay an
amount equal to the CENVAT credit availed in respect of the amount so
refunded or credited :
Cenvat Credit CA Gaurav Gupta 17
Rule 4(7)
Reversal
when
payment
not made
within
three
months
Reversal of
Cenvat
when
payment is
refunded
or credit
note
Provided also that CENVAT credit in respect of an invoice, bill or, as the
case may be, challan referred to in rule 9, issued before the 1st day of April,
2011 shall be allowed, on or after the day on which payment is made of the
value of input service and the service tax paid or payable as indicated in
invoice, bill or, as the case may be, challan referred to in rule 9 :
Provided also that the manufacturer or the provider of output service shall
not take CENVAT credit after six months of the date of issue of any of the
documents specified in sub-rule (1) of rule 9.
Explanation I. - The amount mentioned in this sub-rule, unless specified
otherwise, shall be paid by the manufacturer of goods or the provider of
output service by debiting the CENVAT credit or otherwise on or before the
5th day of the following month except for the month of March, when such
payment shall be made on or before the 31st day of the month of March.
Cenvat Credit CA Gaurav Gupta 18
Rule 4(7)
Credit of
Input
services
relating to
prior to
1.4.2011
Restriction
post 6
months
Cenvat
Account to
be debited
by 5th
Explanation II. - If the manufacturer of goods or the provider of output
service fails to pay the amount payable under this sub-rule, it shall be
recovered, in the manner as provided in rule 14, for recovery of CENVAT
credit wrongly taken.
Explanation III - In case of a manufacturer who avails the exemption under
a notification based on the value of clearances in a financial year and a
service provider who is an individual or proprietary firm or partnership firm,
the expressions, “following month” and “month of March” occurring in sub-
rule (7) shall be read respectively as “following quarter” and “quarter ending
with the month of March.]
Cenvat Credit CA Gaurav Gupta 19
Rule 4(7)
Recovery
of wrong
Cenvat
Rationalisa
tion of
terminolog
y
Cenvat Credit CA Gaurav Gupta 20
Rule 4(7)
Whether Cenvat Credit be reversed even in case of associated
enterprises when the payment is not made within 3 months Yes
Whether Cenvat Credit be allowed proportionately when payment
on invoice is made at value less than that shown in invoice
Yes
Whether Service tax is to be deposited by the Service provider
before recipient can take its credit?
No
BSNL v
CCE
Cenvat Credit CA Gaurav Gupta 21
Rule 4(7)
Is Cenvat allowed When payments are made through debit/credit
and debit/credit entries in books of account or by any other mode
as mentioned in Section 67 Explanation (c) for transactions
between associate enterprises
Yes,
Circular
dated 30th
April 2010
Is Cenvat allowed where a service receiver does not pay the full
invoice value and the service tax indicated thereon due to some
reasons
Yes
IS full Cenvat allowed when part of invoice value is held as
security deposit
Yes
CCE v
Hindustan
Zinc Ltd.
• 5. Refund of CENVAT Credit. — (1) A manufacturer who clears a final
product or an intermediate product for export without payment of duty under
bond or letter of undertaking, or a service provider who provides an output
service which is exported without payment of service tax, shall be allowed
refund of CENVAT credit as determined by the following formula subject to
procedure, safeguards, conditions and limitations, as may be specified by
the Board by notification in the Official Gazette :
Refund amount = (Export turnover of goods + Export turnover of services)
× Net CENVAT credit
-----------------------------------------------------------------
Total turnover
Cenvat Credit CA Gaurav Gupta 22
Rule 5
• “Refund amount” means the maximum refund that is admissible;
• “Net CENVAT credit” means total CENVAT credit availed on inputs and
input services by the manufacturer or the output service provider reduced
by the amount reversed in terms of sub-rule (5C) of rule 3, during the
relevant period;
• “Export turnover of goods” means the value of final products and
intermediate products cleared during the relevant period and exported
without payment of Central Excise duty under bond or letter of undertaking;
• “Export turnover of services” means the value of the export service
calculated in the following manner, namely :-
Export turnover of services = payments received during the relevant period
for export services + export services whose provision has been completed
for which payment had been received in advance in any period prior to the
relevant period - advances received for export services for which the
provision of service has not been completed during the relevant period;
Cenvat Credit CA Gaurav Gupta 23
Rule 5
• “Total turnover” means sum total of the value of -
(a) all excisable goods cleared during the relevant period including exempted
goods, dutiable goods and excisable goods exported;
(b) export turnover of services determined in terms of clause (D) of sub-rule (1)
above and the value of all other services, during the relevant period; and
(c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice,
during the period for which the claim is filed.
(2) This rule shall apply to exports made on or after the 1st April, 2012 :
Provided that the refund may be claimed under this rule, as existing, prior to
the commencement of the CENVAT Credit (Third Amendment) Rules,
2012, within a period of one year from such commencement :
Cenvat Credit CA Gaurav Gupta 24
Rule 5
• Provided further that no refund of credit shall be allowed if the manufacturer
or provider of output service avails of drawback allowed under the Customs
and Central Excise Duties and Service Tax Drawback Rules, 1995, or
claims rebate of duty under the Central Excise Rules, 2002, in respect of
such duty; or claims rebate of service tax under the [Service Tax Rules,
1994] in respect of such tax.
• Explanation 1. - For the purposes of this rule, -
(1) “export service” means a service which is provided as per rule 6A of the
Service Tax Rules, 1994;
(2) “relevant period” means the period for which the claim is filed.
• Explanation 2. - For the purposes of this rule, the value of services shall be
determined in the same manner as the value for the purposes of sub-rules
(3) and (3A) of rule 6 is determined
Cenvat Credit CA Gaurav Gupta 25
Rule 5
• Limitation of 1 year under Section 11B of CEA
• Limitation to be computed from relevant date
Cenvat Credit CA Gaurav Gupta 26
Rule 5
• (B) “relevant date” means, -
(a) in the case of goods exported out of India where a refund of excise duty
paid is available in respect of the goods themselves or, as the case may be,
the excisable materials used in the manufacture of such goods, -
(i) if the goods are exported by sea or air, the date on which the ship or
the aircraft in which such goods are loaded, leaves India, or
(ii) if the goods are exported by land, the date on which such goods pass
the frontier, or
(iii) if the goods are exported by post, the date of despatch of goods by
the Post Office concerned to a place outside India;
(b) in the case of goods returned for being remade, refined, reconditioned, or
subjected to any other similar process, in any factory, the date of entry into
the factory for the purposes aforesaid;
Cenvat Credit CA Gaurav Gupta 27
Rule 5
(c) in the case of goods to which banderols are required to be affixed if
removed for home consumption but not so required when exported outside
India, if returned to a factory after having been removed from such factory
for export out of India, the date of entry into the factory;
(d) in a case where a manufacturer is required to pay a sum, for a certain
period, on the basis of the rate fixed by the Central Government by
notification in the Official Gazette in full discharge of his liability for the duty
leviable on his production of certain goods, if after the manufacturer has
made the payment on the basis of such rate for any period but before the
expiry of that period such rate is reduced, the date of such reduction;
(e) in the case of a person, other than the manufacturer, the date of purchase
of the goods by such person;
(ea) in the case of goods which are exempt from payment of duty by a special
order issued under sub-section (2) of Section 5A, the date of issue of such
order;
Cenvat Credit CA Gaurav Gupta 28
Rule 5
(ea) in the case of goods which are exempt from payment of duty by a special
order issued under sub-section (2) of Section 5A, the date of issue of such
order;
(eb) in case where duty of excise is paid provisionally under this Act or the rules
made thereunder, the date of adjustment of duty after the final assessment
thereof;
(ec) in case where the duty becomes refundable as a consequence of
judgment, decree, order or direction of appellate authority, Appellate
Tribunal or any court, the date of such judgment, decree, order or direction;
(f) in any other case, the date of payment of duty.
Cenvat Credit CA Gaurav Gupta 29
Rule 5
Cenvat Credit CA Gaurav Gupta 30
Rule 5
Following is the procedure laid down in the Notification 5/2006-CE(NT), dated
14.03.2006 for filing of the application for refund of Service Tax under Rule 5 of
Cenvat Credit Rules, 2004:
The Claim for refund is not submitted more the once for any Quarter in a
Calendar year. However, refund can be filed on Monthly basis by an
assessee/applicant whose average export clearances are more than 50% of
the total clearances. Further, EOU Units can also file refund application on
monthly basis.
The application shall be moved/filed in Form A before the Deputy
Commissioner of Central Excise or the Assistant Commissioner of Central
Excise, as the case may be, in whose jurisdiction the factory from which the
final products are exported is situated in the case of manufacturing of goods or
the registered premises of the service provider from which output services are
exported is situated.
Cenvat Credit CA Gaurav Gupta 31
Rule 5
The relevant enclosures required to be filed alongwith the Application for refund
are:
• Copy of the relevant Shipping Bills or Bills of Export duly certified by the
officer of customs
• Copy of invoices.
• Certificate from the bank certifying realization of export proceeds
• Relevant extracts of the records maintained under the Central Excise
Rules, 2002, the CENVAT Credit Rules, 2004, or the Service Tax Rules,
1994, as the case may be, evidencing taking of CENVAT credit, utilization
of such credit in payment of excise duty or service tax and the balance
unutilized credit during the given period.
It has been clarified vide Circular No 120/01/2010-ST, dated 19.01.2010 that
though the Application for Refund needs to be filed on quarterly basis, but in
case of accumulated credit, the same can be claimed if there is no exports in
that particular quarter.
2(d) “exempted goods” means excisable goods, which are
• Are exempt from the whole of the duty of excise leviable thereon
• Are chargeable to “Nil” rate of duty goods in respect of which the benefit of an
exemption under Notification No. 1/2011-CEor under entries at serial numbers 67
and 128 of Notification No. 12/2012-CEis availed
(e) “exempted service” means a -
(1) taxable service which is exempt from the whole of the service tax leviable thereon; or
(2) service, on which no service tax is leviable under section 66B of the Finance Act; or
(3) taxable service whose part of value is exempted on the condition that no credit of
inputs and input services, used for providing such taxable service, shall be taken;
but shall not include a service which is exported in terms of rule 6A of the Service
Tax Rules, 1994.
Cenvat Credit CA Gaurav Gupta 32
Rule 6(3)
Exempted
Goods
Exempted
Services
• Export excluded from the purview of Exempted services:
Rule 6(8) provides that a service provided or agreed to be provided shall not be an
exempted service when:—
(a) the service satisfies the conditions specified under rule 6A of the Service Tax Rules,
1994 and the payment for the service is to be received in convertible foreign
currency; and
(b) such payment has not been received for a period of six months or such extended
period as may be allowed from time-to-time by the Reserve Bank of India, from the
date of provision:
Provided that if such payment is received after the specified or extended period
allowed by the Reserve Bank of India but within one year from such period, the
service provider shall be entitled to take the credit of the amount equivalent to the
CENVAT credit paid earlier in terms of sub-rule (3) to the extent it relates to such
payment, on the basis of documentary evidence of the payment so received.
Cenvat Credit CA Gaurav Gupta 33
Rule 6(3)
Exports
• Services to SEZ – whether exempted services?
Ashlyn Enterprises v. Commissioner of Central Excise, Bangalore [2013] 32
taxmann.com 258 (Bangalore - CESTAT)
• Clearance of exempted waste products – whether reversal required?
Commissioner of Central Excise, Raipur v. Devi Iron & Power Ltd. [2013] 31
taxmann.com 293 (New Delhi - CESTAT)
• Clearance by Job worker where principal pays Excise Duty – whether reversal
required?
Commissioner of Central Excise v. A.I.A. Engineering (India) Ltd. [2013] 30
taxmann.com 64 (Gujarat),
Cenvat Credit CA Gaurav Gupta 34
Rule 6(3)
Cenvat Credit CA Gaurav Gupta 35
Rule 6(3)
Type of services provided Treatment of Cenvat credit
All exempt services No Cenvat credit available
All taxable services provided All eligible credit on inputs, input services and
capital goods available
Both taxable as well as exempt
services provided
Cenvat Credit available as per Rule 6(3) of Cenvat
Credit Rules, 2004
Cenvat Credit CA Gaurav Gupta 36
Rule 6(3)
Provider of Taxable as well as exempt Services
Maintain Seperate
Accounts [Rule 6(2)]
For
Taxable
services
Cenvat credit
is Avialable
For
exempted
services
Cenvat
Credit is
not
available
Do Not Maintain
seperate Accounts
[Rule 6(3)]
Option I
Credits on all inputs / input
services available and
service tax is to be paid as
follows on the output
services
On taxable
Services
Pay Service tax
at normal rates
On Exempted
services
Pay 6% of
value of
exempted
goods/ services
Option II
Credits on all
inputs / input
services available
Cenvat credit to be
Reversed on
proportionate basis
Option III
Maintain
Seperate
records for
Inputs only
Three Choices:
• Pay 6%
• Proportionate Credit reversal under Rule 6(3A)
• Maintain separate accounts for inputs & pro-rata credit reversal on input
services under Rule 6(3A)
Cenvat Credit CA Gaurav Gupta 37
Rule 6(3)
Cenvat Credit CA Gaurav Gupta 38
Rule 6(3)
Whether an assessee availing option (i) or option (ii) under rule
6(3) is allowed to take CENVAT Credit of duty paid on inputs and
input services which are used for both dutiable and exempted
goods or services.
Yes
Whether an assessee availing option (i) in respect of certain
exempted goods/services can also avail option (ii) in respect of
other exempted goods or services simultaneously?
No
What is the accounting code to be followed by the assessee who
is required to pay 8% or other amount for the exempted service
under Rule 6(3).
0044
Whether input services distributor can also opt for option (i)
or option (ii)?
No
Cenvat Credit CA Gaurav Gupta 39
Rule 6(3)
Whether export of service without payment of service tax under
Export of Service Rules shall be treated as exempted service for
the purpose of rule 6(3)?
No
Is reversal on inputs is to be done on the basis of actual
consumption of inputs used and the quantification may be made
based upon the stores/production records maintained by the
manufacturer.
Yes
Should the inputs used in both exempted and dutiable products
should be stored separately.
No
Does Sub-rules (3B) and (3C) of rule 6 apply to whole entity or
independently in respect of each registration?
Each
registration
Cenvat Credit CA Gaurav Gupta 40
Rule 6(3)
Service Value shall be determined
For all services in general Shall have the same meaning as assigned to it
under section 67 of the Finance Act
In case of following persons availing beneficial
rates for payment of Service Tax under Service Tax
Rules, 1994:
 air travel agent [Rule 6(7)]
 insurer carrying on life insurance business
[Rule 6(7A)]
 service tax in relation to purchase or sale of
foreign currency [Rule 6(7B)]
 distributor or selling agent, liable to pay
service tax for the taxable service of
promotion, marketing, organising or in any
other manner assisting in organising
lottery[Rule 6(7C)]
Value on which the rate of service tax under
section 66B of the Finance Act, read with an
exemption notification, if any, relating to such
rate, when applied for calculation of service tax
results in the same amount of tax as calculated
under the option availed
Cenvat Credit CA Gaurav Gupta 41
Rule 6(3)
Service Value shall be determined
In case of trading Difference between the sale price and the cost of
goods sold (determined as per the generally
accepted accounting principles without including
the expenses incurred towards their purchase) or
ten per cent of the cost of goods sold, whichever
is more
In case of trading of securities Difference between the sale price and the
purchase price of the securities traded or one per
cent. of the purchase price of the securities
traded, whichever is more
All services in general Value shall not include the value of services by
way of extending deposits, loans or advances in so
far as the consideration is represented by way of
interest or discount
Cenvat Credit CA Gaurav Gupta 42
Rule 6(3)(ii) / (iii)
Opt
• While exercising this option, the manufacturer of goods or the provider of
output service shall intimate in writing to the Superintendent of Central
Excise
Provsional
• Provisional payment of Cenvat amount attributable to exempted goods /
services to be paid every month
Actual
• Actual determination of amount attributable to exempted goods / services
to be made at year end
Payment
• Pay any shortfall in amount so reversed by 30th June / take credit of any
excess paid if any and intimate to Superitendent
• The steps as to be undertaken in Option II are as follows:
• Step I: Computation on provisional basis Cenvat credit to be reversed every month
on provisional basis under option II of rule 6(3):
Cenvat credit on inputs and input services used in providing taxable as well as non
taxable services (A).
Cenvat credit on inputs and input services used in providing specifically non taxable
services (B).
Value of Taxable services provided during the preceding financial year (C).
Value of exempted services provided during the preceding financial year (D).
Cenvat credit to be reversed = (A – B) X D .
(C + D)
Cenvat Credit CA Gaurav Gupta 43
Rule 6(3)(ii) / (iii)
• Step II: Computation on actual basis Cenvat credit to be adjusted against the Cenvat
credit reversed on provisional basis and determining the balance payable amount or
extra Cenvat available :
Cenvat credit on inputs and input services used in providing taxable as well as non
taxable services (E).
Cenvat credit on inputs and input services used in providing specifically non taxable
services (F).
Value of Taxable services provided during the current financial year (G).
Value of exempted services provided during the current financial year (H).
Cenvat credit to be reversed = (E – F) X H
(G + H)
Cenvat Credit CA Gaurav Gupta 44
Rule 6(3) (ii)/ (iii)
• Can Rule 6(2) and 6(3) be availed simultaneously?
• Will Rule 6(3) apply in case of provision of services made against Credit available
under duty Scrips?
- Circular No. 973/7/2013-CX., dated 4-9-2013
Cenvat Credit CA Gaurav Gupta 45
Rule 6(3)
Disclaimer
This presentation has been prepared for internal use of ICAI and its members. The contents of this document are
solely for informational purpose. It does not constitute professional advice or a formal recommendation. The
presentation is made with utmost professional caution but in no manner guarantees the content for use by any
person. It is suggested to go through original statute / notification / circular / pronouncements before relying on the
matter given. The presentation is meant for general guidance and no responsibility for loss arising to any person
acting or refraining from acting as a result of any material contained in this presentation will be accepted by us.
Professional advice recommended to be sought before any action or refrainment.
CA Gaurav Gupta
Partner
MGS & Co.
507 B, D-Mall, Netaji Subhash Palace, Delhi - 110034
+91 11 32962487
+91 11 2735 2487
+91 98110 13940
cagauravmgs@gmail.com
Thank you

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Practical Discussion on Cenvat Credit Rules

  • 1. Practical discussion on Cenvat Credit Rules Institute of Chartered Accountants of India CCE Alwar December 16, 2015 Presented by: CA Gaurav Gupta FCA, LLB, DISA Partner MGS & Co.
  • 2. Index Cenvat Credit CA Gaurav Gupta 2 • Rule 2(m) • Rule 3(5B) • Rule 4(7) • Rule 5 • Rule 6(3) ISD Reversal of Cenvat credit on value write off Conditions for Credit on Input Services Refund of Cenvat Credit Cenvat Credit in case of both taxable and exempted goods / services
  • 3. Rule 2(m) Rule 2(m) of the Cenvat Credit Rules, 2004 defines “input service distributor” to mean i. an office of the manufacturer; or ii. an office of the producer of final products; or iii. an office of the provider of output service, which receives invoices issued under Rule 4A of the Service Tax Rules, 1994 towards purchases of input services and issues invoice, bill or, as the case may be, challan for the purposes of distributing the credit of service tax paid on the said services to such manufacturer or producer or provider, as the case may be. Cenvat Credit MGS & Co. 3
  • 4. • Even a branch engaged in procurement activity and which does not qualify as a independent unit of the Company can act as an input service distributor and can distribute Cenvat credit received by it. – ITC Ltd. v CCE, Bangalore [[2014] 42 taxmann.com 322 (Bangalore - CESTAT)]. Cenvat Credit CA Gaurav Gupta 4 Rule 2(m)
  • 5. Manner of distribution of credit by input service distributor. — The input service distributor may distribute the CENVAT credit in respect of the service tax paid on the input service to its manufacturing units or units providing output service, subject to the following conditions, namely :— (a) the credit distributed against a document referred to in rule 9 does not exceed the amount of service tax paid thereon; (b) credit of service tax attributable to service used by one or more units exclusively engaged in manufacture of exempted goods or providing of exempted services shall not be distributed; (c) credit of service tax attributable to service used wholly by a unit shall be distributed only to that unit; and (d) credit of service tax attributable to service used by more than one unit shall be distributed pro rata on the basis of the turnover of such units during the relevant period to the total turnover of all its units, which are operational in the current year, during the said relevant period. Cenvat Credit CA Gaurav Gupta 5 Rule 2(m)
  • 6. Explanation 1. - For the purposes of this rule, “unit” includes the premises of a provider of output service and the premises of a manufacturer including the factory, whether registered or otherwise. Explanation 2. - For the purposes of this rule, the total turnover shall be determined in the same manner as determined under rule 5. Explanation 3. - For the purposes of this rule, the ‘relevant period’ shall be, - (a) If the assessee has turnover in the ‘financial year’ preceding to the year during which credit is to be distributed for month or quarter, as the case may be, the said financial year; or (b) If the assessee does not have turnover for some or all the units in the preceding financial year, the last quarter for which details of turnover of all the units are available, previous to the month or quarter for which credit is to be distributed. Cenvat Credit CA Gaurav Gupta 6 Rule 2(m)
  • 7. Mr A is an advertisement designer having offices in Delhi, Mumbai and Chennai and a unit in Parwanoo, Himachal. While the first three offices are engaged in designing of advertisement and providing taxable services, the Himachal unit is engaged in manufacturing of advertisement material. Cenvat Credit CA Gaurav Gupta 7 Rule 2(m) Unit Particular Turnover of preceding period Delhi Advertisement designing 10,00,000 Mumbai Advertisement designing 15,00,000 Chennai Advertisement designing 25,00,000 Parwanoo Manufacture of exempted goods 1,00,00,000
  • 8. The following Cenvat credits were received vide invoices towards various services provided by vendors in the different units at the head office at Delhi for payment: Cenvat Credit CA Gaurav Gupta 8 Rule 2(m) Nature of service Unit receiving services Cenvat credit Security services Delhi 10,000 Mumbai 5,000 Chennai 5,000 Parwanoo 5,500 Professionals serving different units Delhi 100,000 Mumbai 50,000 Chennai 25,000 Parwanoo 10,000 Audit All units 150,000 Total 360,500
  • 9. In the above example, while distributing credit, Delhi HO has to take following points into consideration: • Delhi cannot distribute credit more than that received on a bill, thus, for eg. In case of security services of Mumbai, the credit available for distribution cannot excees Rs 5,000. Total credit cannot exceed Rs 360,500. • Credit attributable to service exclusively used in Parwanoo cannot be distributed as it is engaged in manufacture of exempted goods. Thus, credit of Rs. 15,500 (5,500+10,000) cannot be distributed. • Credit of service tax attributed exclusively to different units would go to those units only. Thus, the exclusive credit as would be passed to units is as follows: Cenvat Credit CA Gaurav Gupta 9 Rule 2(m) Unit Credit Delhi 110,000 Mumbai 55,000 Chennai 30,000
  • 10. In the above example, while distributing credit, Delhi HO has to take following points into consideration: • Delhi cannot distribute credit more than that received on a bill, thus, for eg. In case of security services of Mumbai, the credit available for distribution cannot excees Rs 5,000. Total credit cannot exceed Rs 360,500. • Credit attributable to service exclusively used in Parwanoo cannot be distributed as it is engaged in manufacture of exempted goods. Thus, credit of Rs. 15,500 (5,500+10,000) cannot be distributed. • Credit of service tax attributed exclusively to different units would go to those units only. Thus, the exclusive credit as would be passed to units is as follows: Cenvat Credit CA Gaurav Gupta 10 Rule 2(m) Unit Credit Delhi 110,000 Mumbai 55,000 Chennai 30,000
  • 11. • Common Credit shall be distributed pro rata on the basis of the turnover i.e. credit on audit fee shall be attributed in proportion of their Turnovers shall be as follows: • Summary of credit distribution would be as follows: Cenvat Credit CA Gaurav Gupta 11 Rule 2(m) Unit Credit Delhi 10,000 (10,00,000/15000000 x 150,000) Mumbai 15,000 (15,00,000/15000000 x 150,000) Chennai 25,000 (25,00,000/15000000 x 150,000) Parwanoo 1,00,000 (100,00,000/15000000 x 150,000) Total 150,000 Unit Not allowed Exclusive Common Delhi 110,000 10,000 Mumbai 55,000 15,000 Chennai 30,000 25,000 Parwanoo 15,500 1,00,000 Total 15,000 195,000 150,000
  • 12. • Can a unit which is not registered as Input Service Distributor but receives input services distribute credit and rectify the registration later being procedural error? - Market Creators Ltd. v CCE - 2014 (36) S.T.R. 386 (Tri. - Ahmd.) - Nitco Ltd. v CCE 2014 (34) S.T.R. 835 (Tri. - Mumbai) • Can recovery of Tax be made from Input Service Distributor when Cenvat has been wrongly availed? - IOCL v CCE - 2014 (35) S.T.R. 411 (Tri. - Del.) • Can a different entity pass on credit to another entity by registering as Input Service Distributor when such credit is attributed to activities of such other entity? - Sunbell Alloys Co. v CCE&C 2014 (34) S.T.R. 597 (Tri. - Mumbai) Cenvat Credit CA Gaurav Gupta 12 Rule 2(m)
  • 13. • If the value of any, (i) input, or (ii) capital goods before being put to use, • on which CENVAT credit has been taken is written off fully or partially or where any provision to write off fully or partially has been made in the books of account then, the manufacturer or service provider, as the case may be, shall pay an amount equivalent to the CENVAT credit taken in respect of the said input or capital goods : Provided that if the said input or capital goods is subsequently used in the manufacture of final products or the provision of output services, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these rules. Cenvat Credit CA Gaurav Gupta 13 Rule 3(5B)
  • 14. • No reversal required in certain situation • Service provider removes any capital goods outside his premises for providing the output service. • The Cenvat Credit is allowable even if any capital goods are sent as such or after being partially processed to a job worker for further processing, testing, repair, reconditioning, etc. However, Cenvat Credit shall be allowed only if it is established by the output service provider taking the Cenvat Credit that the capital goods are received back within 180 days of their being sent to a job worker. Cenvat Credit CA Gaurav Gupta 14 Rule 3(5B)
  • 15. • Reversal required for the bottle (input) when written off by the assessee as destroyed in case of bottled beverage manufacturer - Circular No. 930/20/2010-CX, dated 9-7-2010 • Whether reversal is required for provision for write off of Work in progress? - Circular No. 907/27/2009-CX., dated 7-12-2009 Cenvat Credit CA Gaurav Gupta 15 Rule 3(5B)
  • 16. Rule 4(7) The CENVAT credit in respect of input service shall be allowed, on or after the day on which the invoice, bill or, as the case may be, challan referred to in rule 9 is received : Provided that in respect of input service where whole of the service tax is liable to be paid by the recipient of service, credit shall be allowed after the service tax is paid : Provided further that in respect of an input service, where the service recipient is liable to pay a part of service tax and the service provider is liable to pay the remaining part, the CENVAT credit in respect of such input service shall be allowed on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9 : Cenvat Credit CA Gaurav Gupta 16 Rule 4(7) Credit of 100% reverse charge liability Basic Credit Rule Credit of partial reverse charge
  • 17. Provided also that in case the payment of the value of input service and the service tax paid or payable as indicated in the invoice, bill or, as the case may be, challan referred to in rule 9, except in respect of input service where the whole of the service tax is liable to be paid by the recipient of service, is not made within three months of the date of the invoice, bill or, as the case may be, challan, the manufacturer or the service provider who has taken credit on such input service, shall pay an amount equal to the CENVAT credit availed on such input service and in case the said payment is made, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these rules : Provided also that if any payment or part thereof, made towards an input service is refunded or a credit note is received by the manufacturer or the service provider who has taken credit on such input service, he shall pay an amount equal to the CENVAT credit availed in respect of the amount so refunded or credited : Cenvat Credit CA Gaurav Gupta 17 Rule 4(7) Reversal when payment not made within three months Reversal of Cenvat when payment is refunded or credit note
  • 18. Provided also that CENVAT credit in respect of an invoice, bill or, as the case may be, challan referred to in rule 9, issued before the 1st day of April, 2011 shall be allowed, on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9 : Provided also that the manufacturer or the provider of output service shall not take CENVAT credit after six months of the date of issue of any of the documents specified in sub-rule (1) of rule 9. Explanation I. - The amount mentioned in this sub-rule, unless specified otherwise, shall be paid by the manufacturer of goods or the provider of output service by debiting the CENVAT credit or otherwise on or before the 5th day of the following month except for the month of March, when such payment shall be made on or before the 31st day of the month of March. Cenvat Credit CA Gaurav Gupta 18 Rule 4(7) Credit of Input services relating to prior to 1.4.2011 Restriction post 6 months Cenvat Account to be debited by 5th
  • 19. Explanation II. - If the manufacturer of goods or the provider of output service fails to pay the amount payable under this sub-rule, it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken. Explanation III - In case of a manufacturer who avails the exemption under a notification based on the value of clearances in a financial year and a service provider who is an individual or proprietary firm or partnership firm, the expressions, “following month” and “month of March” occurring in sub- rule (7) shall be read respectively as “following quarter” and “quarter ending with the month of March.] Cenvat Credit CA Gaurav Gupta 19 Rule 4(7) Recovery of wrong Cenvat Rationalisa tion of terminolog y
  • 20. Cenvat Credit CA Gaurav Gupta 20 Rule 4(7) Whether Cenvat Credit be reversed even in case of associated enterprises when the payment is not made within 3 months Yes Whether Cenvat Credit be allowed proportionately when payment on invoice is made at value less than that shown in invoice Yes Whether Service tax is to be deposited by the Service provider before recipient can take its credit? No BSNL v CCE
  • 21. Cenvat Credit CA Gaurav Gupta 21 Rule 4(7) Is Cenvat allowed When payments are made through debit/credit and debit/credit entries in books of account or by any other mode as mentioned in Section 67 Explanation (c) for transactions between associate enterprises Yes, Circular dated 30th April 2010 Is Cenvat allowed where a service receiver does not pay the full invoice value and the service tax indicated thereon due to some reasons Yes IS full Cenvat allowed when part of invoice value is held as security deposit Yes CCE v Hindustan Zinc Ltd.
  • 22. • 5. Refund of CENVAT Credit. — (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette : Refund amount = (Export turnover of goods + Export turnover of services) × Net CENVAT credit ----------------------------------------------------------------- Total turnover Cenvat Credit CA Gaurav Gupta 22 Rule 5
  • 23. • “Refund amount” means the maximum refund that is admissible; • “Net CENVAT credit” means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; • “Export turnover of goods” means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; • “Export turnover of services” means the value of the export service calculated in the following manner, namely :- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; Cenvat Credit CA Gaurav Gupta 23 Rule 5
  • 24. • “Total turnover” means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012 : Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement : Cenvat Credit CA Gaurav Gupta 24 Rule 5
  • 25. • Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the [Service Tax Rules, 1994] in respect of such tax. • Explanation 1. - For the purposes of this rule, - (1) “export service” means a service which is provided as per rule 6A of the Service Tax Rules, 1994; (2) “relevant period” means the period for which the claim is filed. • Explanation 2. - For the purposes of this rule, the value of services shall be determined in the same manner as the value for the purposes of sub-rules (3) and (3A) of rule 6 is determined Cenvat Credit CA Gaurav Gupta 25 Rule 5
  • 26. • Limitation of 1 year under Section 11B of CEA • Limitation to be computed from relevant date Cenvat Credit CA Gaurav Gupta 26 Rule 5
  • 27. • (B) “relevant date” means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; Cenvat Credit CA Gaurav Gupta 27 Rule 5
  • 28. (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 5A, the date of issue of such order; Cenvat Credit CA Gaurav Gupta 28 Rule 5
  • 29. (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. Cenvat Credit CA Gaurav Gupta 29 Rule 5
  • 30. Cenvat Credit CA Gaurav Gupta 30 Rule 5 Following is the procedure laid down in the Notification 5/2006-CE(NT), dated 14.03.2006 for filing of the application for refund of Service Tax under Rule 5 of Cenvat Credit Rules, 2004: The Claim for refund is not submitted more the once for any Quarter in a Calendar year. However, refund can be filed on Monthly basis by an assessee/applicant whose average export clearances are more than 50% of the total clearances. Further, EOU Units can also file refund application on monthly basis. The application shall be moved/filed in Form A before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction the factory from which the final products are exported is situated in the case of manufacturing of goods or the registered premises of the service provider from which output services are exported is situated.
  • 31. Cenvat Credit CA Gaurav Gupta 31 Rule 5 The relevant enclosures required to be filed alongwith the Application for refund are: • Copy of the relevant Shipping Bills or Bills of Export duly certified by the officer of customs • Copy of invoices. • Certificate from the bank certifying realization of export proceeds • Relevant extracts of the records maintained under the Central Excise Rules, 2002, the CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, as the case may be, evidencing taking of CENVAT credit, utilization of such credit in payment of excise duty or service tax and the balance unutilized credit during the given period. It has been clarified vide Circular No 120/01/2010-ST, dated 19.01.2010 that though the Application for Refund needs to be filed on quarterly basis, but in case of accumulated credit, the same can be claimed if there is no exports in that particular quarter.
  • 32. 2(d) “exempted goods” means excisable goods, which are • Are exempt from the whole of the duty of excise leviable thereon • Are chargeable to “Nil” rate of duty goods in respect of which the benefit of an exemption under Notification No. 1/2011-CEor under entries at serial numbers 67 and 128 of Notification No. 12/2012-CEis availed (e) “exempted service” means a - (1) taxable service which is exempt from the whole of the service tax leviable thereon; or (2) service, on which no service tax is leviable under section 66B of the Finance Act; or (3) taxable service whose part of value is exempted on the condition that no credit of inputs and input services, used for providing such taxable service, shall be taken; but shall not include a service which is exported in terms of rule 6A of the Service Tax Rules, 1994. Cenvat Credit CA Gaurav Gupta 32 Rule 6(3) Exempted Goods Exempted Services
  • 33. • Export excluded from the purview of Exempted services: Rule 6(8) provides that a service provided or agreed to be provided shall not be an exempted service when:— (a) the service satisfies the conditions specified under rule 6A of the Service Tax Rules, 1994 and the payment for the service is to be received in convertible foreign currency; and (b) such payment has not been received for a period of six months or such extended period as may be allowed from time-to-time by the Reserve Bank of India, from the date of provision: Provided that if such payment is received after the specified or extended period allowed by the Reserve Bank of India but within one year from such period, the service provider shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier in terms of sub-rule (3) to the extent it relates to such payment, on the basis of documentary evidence of the payment so received. Cenvat Credit CA Gaurav Gupta 33 Rule 6(3) Exports
  • 34. • Services to SEZ – whether exempted services? Ashlyn Enterprises v. Commissioner of Central Excise, Bangalore [2013] 32 taxmann.com 258 (Bangalore - CESTAT) • Clearance of exempted waste products – whether reversal required? Commissioner of Central Excise, Raipur v. Devi Iron & Power Ltd. [2013] 31 taxmann.com 293 (New Delhi - CESTAT) • Clearance by Job worker where principal pays Excise Duty – whether reversal required? Commissioner of Central Excise v. A.I.A. Engineering (India) Ltd. [2013] 30 taxmann.com 64 (Gujarat), Cenvat Credit CA Gaurav Gupta 34 Rule 6(3)
  • 35. Cenvat Credit CA Gaurav Gupta 35 Rule 6(3) Type of services provided Treatment of Cenvat credit All exempt services No Cenvat credit available All taxable services provided All eligible credit on inputs, input services and capital goods available Both taxable as well as exempt services provided Cenvat Credit available as per Rule 6(3) of Cenvat Credit Rules, 2004
  • 36. Cenvat Credit CA Gaurav Gupta 36 Rule 6(3) Provider of Taxable as well as exempt Services Maintain Seperate Accounts [Rule 6(2)] For Taxable services Cenvat credit is Avialable For exempted services Cenvat Credit is not available Do Not Maintain seperate Accounts [Rule 6(3)] Option I Credits on all inputs / input services available and service tax is to be paid as follows on the output services On taxable Services Pay Service tax at normal rates On Exempted services Pay 6% of value of exempted goods/ services Option II Credits on all inputs / input services available Cenvat credit to be Reversed on proportionate basis Option III Maintain Seperate records for Inputs only
  • 37. Three Choices: • Pay 6% • Proportionate Credit reversal under Rule 6(3A) • Maintain separate accounts for inputs & pro-rata credit reversal on input services under Rule 6(3A) Cenvat Credit CA Gaurav Gupta 37 Rule 6(3)
  • 38. Cenvat Credit CA Gaurav Gupta 38 Rule 6(3) Whether an assessee availing option (i) or option (ii) under rule 6(3) is allowed to take CENVAT Credit of duty paid on inputs and input services which are used for both dutiable and exempted goods or services. Yes Whether an assessee availing option (i) in respect of certain exempted goods/services can also avail option (ii) in respect of other exempted goods or services simultaneously? No What is the accounting code to be followed by the assessee who is required to pay 8% or other amount for the exempted service under Rule 6(3). 0044 Whether input services distributor can also opt for option (i) or option (ii)? No
  • 39. Cenvat Credit CA Gaurav Gupta 39 Rule 6(3) Whether export of service without payment of service tax under Export of Service Rules shall be treated as exempted service for the purpose of rule 6(3)? No Is reversal on inputs is to be done on the basis of actual consumption of inputs used and the quantification may be made based upon the stores/production records maintained by the manufacturer. Yes Should the inputs used in both exempted and dutiable products should be stored separately. No Does Sub-rules (3B) and (3C) of rule 6 apply to whole entity or independently in respect of each registration? Each registration
  • 40. Cenvat Credit CA Gaurav Gupta 40 Rule 6(3) Service Value shall be determined For all services in general Shall have the same meaning as assigned to it under section 67 of the Finance Act In case of following persons availing beneficial rates for payment of Service Tax under Service Tax Rules, 1994:  air travel agent [Rule 6(7)]  insurer carrying on life insurance business [Rule 6(7A)]  service tax in relation to purchase or sale of foreign currency [Rule 6(7B)]  distributor or selling agent, liable to pay service tax for the taxable service of promotion, marketing, organising or in any other manner assisting in organising lottery[Rule 6(7C)] Value on which the rate of service tax under section 66B of the Finance Act, read with an exemption notification, if any, relating to such rate, when applied for calculation of service tax results in the same amount of tax as calculated under the option availed
  • 41. Cenvat Credit CA Gaurav Gupta 41 Rule 6(3) Service Value shall be determined In case of trading Difference between the sale price and the cost of goods sold (determined as per the generally accepted accounting principles without including the expenses incurred towards their purchase) or ten per cent of the cost of goods sold, whichever is more In case of trading of securities Difference between the sale price and the purchase price of the securities traded or one per cent. of the purchase price of the securities traded, whichever is more All services in general Value shall not include the value of services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount
  • 42. Cenvat Credit CA Gaurav Gupta 42 Rule 6(3)(ii) / (iii) Opt • While exercising this option, the manufacturer of goods or the provider of output service shall intimate in writing to the Superintendent of Central Excise Provsional • Provisional payment of Cenvat amount attributable to exempted goods / services to be paid every month Actual • Actual determination of amount attributable to exempted goods / services to be made at year end Payment • Pay any shortfall in amount so reversed by 30th June / take credit of any excess paid if any and intimate to Superitendent
  • 43. • The steps as to be undertaken in Option II are as follows: • Step I: Computation on provisional basis Cenvat credit to be reversed every month on provisional basis under option II of rule 6(3): Cenvat credit on inputs and input services used in providing taxable as well as non taxable services (A). Cenvat credit on inputs and input services used in providing specifically non taxable services (B). Value of Taxable services provided during the preceding financial year (C). Value of exempted services provided during the preceding financial year (D). Cenvat credit to be reversed = (A – B) X D . (C + D) Cenvat Credit CA Gaurav Gupta 43 Rule 6(3)(ii) / (iii)
  • 44. • Step II: Computation on actual basis Cenvat credit to be adjusted against the Cenvat credit reversed on provisional basis and determining the balance payable amount or extra Cenvat available : Cenvat credit on inputs and input services used in providing taxable as well as non taxable services (E). Cenvat credit on inputs and input services used in providing specifically non taxable services (F). Value of Taxable services provided during the current financial year (G). Value of exempted services provided during the current financial year (H). Cenvat credit to be reversed = (E – F) X H (G + H) Cenvat Credit CA Gaurav Gupta 44 Rule 6(3) (ii)/ (iii)
  • 45. • Can Rule 6(2) and 6(3) be availed simultaneously? • Will Rule 6(3) apply in case of provision of services made against Credit available under duty Scrips? - Circular No. 973/7/2013-CX., dated 4-9-2013 Cenvat Credit CA Gaurav Gupta 45 Rule 6(3)
  • 46. Disclaimer This presentation has been prepared for internal use of ICAI and its members. The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. The presentation is made with utmost professional caution but in no manner guarantees the content for use by any person. It is suggested to go through original statute / notification / circular / pronouncements before relying on the matter given. The presentation is meant for general guidance and no responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this presentation will be accepted by us. Professional advice recommended to be sought before any action or refrainment. CA Gaurav Gupta Partner MGS & Co. 507 B, D-Mall, Netaji Subhash Palace, Delhi - 110034 +91 11 32962487 +91 11 2735 2487 +91 98110 13940 cagauravmgs@gmail.com Thank you