2017 (6) TMI 817 - AT - Service Tax

Wrong availment/utilization of Cenvat Credit - duty paying invoices - invoices were not in the name of their registered premises at Gurgaon - whether the Cenvat Credit taken in respect of invoices of unregistered premises of an assessee can be allowed or not? - Held that - the issue is no longer res integra and has been held in the many judgments of this Tribunal in favour of the assessee on the ground that it is remediable defect - reliance placed in the case of M/s. Allspheres Entertainment Pvt. Ltd. Versus CCE, Meerut 2015 (8) TMI 953 - CESTAT NEW DELHI , where it was held that In the absence of any such dispute regarding availment of services and their utilization for payment of service tax or proper accounting of the same, the denial of Cenvat Credit of service tax paid by Nainital office of the appellant on the sole ground that the invoices issued are in the name of the appellants unregistered office at Delhi is unjustified. Extended period of limitation - Held that - the SCN was issued in 2008 for the period of 2004-2005 and 2005-2006 nowhere invoked extended period in relation to the wrong availment/utilization of Cenvat Credit. In the absence of express invoking of extended period in the show cause notice, the demand is completely barred by limitation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against impugned order on demand for Cenvat Credit utilization and intellectual property services.

Analysis:
The appellants contested the demand based on wrongly availed Cenvat Credit for 2004-2005 and 2005-2006, arguing that the invoices were in the name of their unregistered premises at Mumbai, not their registered premises at Gurgaon. They highlighted no extended period invoked for Cenvat Credit suppression and declared necessary details in ST-3 returns. Citing case laws like GE India Exports and Allspheres Entertainment Pvt. Ltd., they argued for credit allowance. The AR defended the demand, stating no centralized or input services distributor registration existed. The Tribunal examined records and found the key issue to be whether Cenvat Credit on unregistered premises' invoices could be allowed. Referring to precedents like Allspheres Entertainment Pvt. Ltd., the Tribunal held such defects as remediable, allowing the credit.

The Tribunal noted the absence of extended period invocation in the 2008 show cause notice for the Cenvat Credit issue, barring the demand by limitation. Consequently, the Commissioner's order was deemed unsustainable and set aside, allowing the appellant's appeal.