2016 (3) TMI 619 - AT - Service Tax

Rejection of Cenvat Credit availed only on the ground that section 66A has not been specified in Rule 3 of CENVAT Credit Rules - denial of an amoun being the Cenvat Credit for the period prior to 18.04.2006 citing that Section 66A was brought into the statute book with effect from 18.04.2006 and there was no charge of service tax on the services received from outside India prior to 18.04.2006 - payment of service tax under reverse charge mechanism in case of services received from foreign party - Held that - There is only one charging section in the service tax i.e. Section 66. Section 66A is merely a deeming provision which deems that the services provided by various service providers are provided by service recipients in India. Section 66A is not a charging section and the same has also been made clear by circular 354/148/2009-TRU dated 16.07.2009 and in the said circular CBEC has made it clear that there is no mistake or omission in that relevant provision of CENVAT Credit Rules, 2004 and credit of tax paid on imported services should be allowed if they are in the nature of input services. Further in this case the tax was paid under Section 66 of the Finance Act, and hence the credit is admissible to the appellant. Further as per the department impugned order though the tax itself was not required to be paid then in that case credit is nothing but a refund of the tax erroneously paid by the appellant in their Cenvat Credit account. Further, in the case of Bajaj Allianz General Insurance (2014 (8) TMI 787 - CESTAT MUMBAI) the bench of this Tribunal by relying upon the judgment of the Supreme Court in the case of CIT vs Mahalakshmi Textile Mills Ltd. (1967 (5) TMI 4 - SUPREME Court ) has held that the Cenvat Credit taken by the appellant is nothing but refund of the service tax paid by them on the services which were not required to pay service tax. The above said decision is squarely applicable in the facts and circumstances of the present case. Further, in this case extended period cannot be invoked as the appellant have been disclosing the credits in their ER-1 returns and they were under a bonafide belief that they are liable to pay tax in terms of Rule 2(1)(d)(iv) and also entitled to take credit and the issue involved in the present case was with regard to interpretation of statutory provision and moreover the ld. Commissioner has also not given any finding that the appellant have suppressed anything from the department. - Decided in favour of assessee

Summary

Issues:
Interpretation of CENVAT Credit Rules regarding service tax payment under reverse charge mechanism prior to the introduction of Section 66A.

Analysis:
The case involved a dispute over the Cenvat Credit availed by the appellant for service tax paid under reverse charge mechanism. The appellant, engaged in manufacturing electrical insulators, paid service tax on commission to a foreign commission agent. The department issued a show-cause notice demanding the amount paid, citing non-inclusion of Section 66A in Rule 3 of CENVAT Credit Rules, 2004. The appellant contended that they were entitled to the credit as they paid the tax under the reverse charge mechanism. The appellant argued that prior to the introduction of Section 66A, there was no provision for service tax on services received from outside India. The appellant relied on circulars and judgments supporting their position.

The appellant argued that the impugned order was passed mechanically without considering relevant laws and case laws. They contended that the tax paid was refundable as they were not liable to pay service tax on the commission. The appellant highlighted circulars clarifying the taxability of imported services and emphasized that the tax was paid under Section 66 of the Finance Act, making them eligible for credit. The appellant also challenged the invocation of the extended period of limitation for imposing penalties, asserting their bonafide belief in tax liability.

On the other hand, the respondent reiterated that Section 66A was introduced in 2006, making it the charging section for service tax post-April 2006. The respondent relied on judgments supporting their argument regarding the applicability of Section 66A. However, the appellate tribunal, after considering circulars and judgments, found that Section 66 was the only charging section for service tax. The tribunal emphasized that Section 66A was a deeming provision and not a charging section. It noted that the tax paid by the appellant was admissible under Section 66, and the credit was justified. The tribunal also ruled that the extended period of limitation could not be invoked, as the appellant had disclosed the credits in their returns in good faith.

In conclusion, the tribunal held that the impugned order was not sustainable in law. The tribunal set aside the order and allowed the appeal, providing consequential relief to the appellant. The judgment clarified the interpretation of statutory provisions regarding service tax payment under reverse charge mechanism before the enactment of Section 66A.