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2017 (6) TMI 906 - AT - Service TaxCENVAT credit - denial on the ground that appellant were not registered - time limitation - Held that - with regard to the availment of CENVAT credit without registration, the issue is squarely covered in favor of the assessee in the case of mPortal India Wireless Solutions Pvt. Ltd. 2011 (9) TMI 450 - KARNATAKA HIGH COURT , where it was held that Registration not compulsory for refund. CENVAT credit with regard to other input services - Held that - The learned Commissioner (A) has rightly held that Rule 5 of Taxation of Services (Provided from outside India and received in India) Rules, 2006 does not restrict the availment of other input services which have contributed in the provisions of their other output services. Extended period of limitation - Held that - the demand is hit by limitation for the period October 2008 to September 2010 because the assessee has not concealed any information from the Department and the Department has failed to bring in any evidence on record to prove that assessee indulged in fraud, suppression of facts, collusion or willful mis-statement with an intend to evade payment of duty - demand set aside. Appeal dismissed - decided against Revenue.
Issues:
1. Availment of CENVAT credit prior to registration 2. Utilization of CENVAT credit towards payment of service tax on import of services 3. Allegation of suppression of facts 4. Eligibility of credit for exported services 5. Denial of credit on input services 6. Demand of service tax exceeding the amount proposed in the show-cause notice 7. Limitation period for the demand Analysis: 1. Availment of CENVAT credit prior to registration: The case involved the appellant challenging the order that set aside the Order-in-Original due to the appellant availing CENVAT credit prior to registration. The appellant contended that registration was not a prerequisite for claiming credit and cited relevant case laws supporting their stance. The Commissioner (A) allowed the appeal, emphasizing that registration was not mandatory for claiming credit, as supported by legal precedents. The Tribunal upheld the Commissioner's decision, citing the absence of evidence proving fraud or suppression by the appellant. 2. Utilization of CENVAT credit towards payment of service tax on import of services: The appellant was accused of wrongly utilizing CENVAT credit for service tax on imported services. The Revenue argued that this action was unlawful and invoked the extended period for recovery. However, the appellant defended their position, stating that Rule 5 of Taxation of Services Rules does not restrict the availment of input services for providing output services. The Commissioner (A) supported the appellant's argument, and the Tribunal upheld this decision, finding no fault in the impugned order. 3. Allegation of suppression of facts: The Revenue alleged that the appellant suppressed information to evade duty payment. The appellant refuted this claim, stating they provided all necessary information to the department, which did not object. The Tribunal agreed with the appellant, noting the absence of evidence supporting the allegation of suppression of facts. 4. Eligibility of credit for exported services: The appellant contended that the services provided, considered as exports, were eligible for credit under CENVAT rules. They referenced various court decisions supporting their argument. The Tribunal acknowledged the appellant's position, upholding the Commissioner's decision that the demand was time-barred for a specific period. 5. Denial of credit on input services: The denial of credit on input services was challenged by the appellant, arguing that the services provided were not exempted. They cited legal precedents to support their claim. The Tribunal agreed with the appellant, finding the denial of credit on input services to be incorrect. 6. Demand of service tax exceeding the amount proposed: The appellant contested the demand of service tax, claiming it exceeded the proposed amount in the show-cause notice. The Tribunal found this discrepancy to be illegal, supporting the appellant's argument. 7. Limitation period for the demand: The issue of limitation period for the demand was raised by the appellant, asserting that the demand was time-barred for a specific period. The Commissioner (A) and the Tribunal agreed with the appellant, ruling in their favor based on the absence of evidence proving fraudulent intent or suppression of facts. In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the Commissioner's decision in favor of the appellant on all the issues raised, including the limitation period, eligibility of credit, and utilization of CENVAT credit.
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