2017 (7) TMI 979 - AT - Central Excise

CENVAT credit - job-work - manpower services - duty paying documents - denial on the ground that the service tax was not paid earlier and not shown in the invoice, cenvat credit was availed on the supplementary invoice - Held that - Though the service tax was not paid at the time raising the invoice but undisputedly paid the service tax and subsequently issued supplementary invoice. It is permissible to avail the cenvat credit on the strength of supplementary invoice - The allegation of the lower authority that credit is not admissible on supplementary invoice issued in respect of service tax paid under suppression of fact is not found to be correct for the reason that the period involved in the present case is 2008, whereas this embargo of suppression of fact in respect of the supplementary invoice was brought under Rule 9(1) (bb) w.e.f. 1.4.2011, therefore denial of credit on this ground is also not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Availing cenvat credit on service tax paid by job worker, denial of credit on supplementary invoice, admissibility of credit under Rule 9(1) (bb), validity of supplementary invoice for cenvat credit.

Analysis:
The case involved the availing of cenvat credit by the appellant for service tax paid on manpower services by their job worker. The job worker paid the service tax based on the department's view that the service was manpower service and not exempt. The cenvat credit was initially denied as the service tax was not paid earlier and not shown in the invoice, but availed on a supplementary invoice. The appellant contended that the payment of service tax, albeit belatedly, and issuance of a supplementary invoice should allow for the credit. The appellant argued that the restriction on credit for supplementary invoices due to suppression of fact under Rule 9(1) (bb) was not applicable for the period in question (August 2008). The appellant cited various decisions in support of their arguments.

The Assistant Commissioner for the Revenue reiterated the lower authority's finding that the absence of service tax amount on the invoice rendered it invalid for claiming cenvat credit. However, the Member (Judicial) carefully considered both sides' submissions and found that the appellant had indeed received the service and paid the service tax, even though it was done belatedly and through a supplementary invoice. The Member noted that denying credit based on suppression of fact for the supplementary invoice was not valid for the period in question (2008) as the relevant rule came into effect later in 2011. The Member highlighted a previous case involving the same job worker where cenvat credit for service tax paid by the job worker was allowed. Consequently, the impugned order was set aside, and the appellant's appeal was allowed with any consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, allowing them to avail cenvat credit on the service tax paid by the job worker through a supplementary invoice. The decision emphasized the timing of the rule regarding suppression of fact and the precedent set in a similar case involving the same job worker.