2017 (8) TMI 835 - AT - Service Tax

Penalty - The department has taken service tax rate of 8% according to the date of receipt of service whereas the claim of the appellant is 5% service tax as on the date of agreement in respect of the service - Held that - the rate of service tax is applicable as on date of provision of service and not as on date of receipt of the service charges. Therefore, the view taken by the Revenue is absolutely incorrect and illegal without any support of law. CENVAT credit - debit notes issued by the service provider - Held that - even though the Rule prescribed challan and invoice as valid document for availing the cenvat credit but if all the information required to be mentioned in the invoice is otherwise appearing on the debit notes, the said debit notes must be allowed for taking the credit - demand set aside. CENVAT credit - repair and maintenance of windmills - Held that - The electricity generated from the said windmill was partly sold to the Gujarat Electricity Board and partly diverted to their Group Company M/s. Tata Motors. Therefore the windmills is not used either for providing any service or carrying out any manufacturing activity. Therefore the basic requirement of the cenvat credit is not fulfilled, hence the credit on the repair and maintenance service of the windmills is clearly not admissible to the appellant therefore we uphold the demand of ₹ 5,38,278/- on the repair and maintenance service of windmills. CENVAT credit - service of Chartered Accountant for the service of sale of equity share of Tata Home Finance to some other party - Held that - this service is not related to the output service of the appellant as this service was availed against the investment made by the appellant out of the income generated from the overall business. Therefore it is not related to any output service provided by the appellant therefore the credit is not admissible - demand upheld. CENVAT credit - invoices which do not bear the registration number of service provider - Held that - merely because the registration number of the service provider is not mentioned of the invoices. Cenvat credit cannot be denied particularly when there is no charge of non-payment of service tax either by the service provider to the government or by the appellant to the service provider - demand set aside. Appeal allowed - decided partly in favor of appellant.

Summary

Issues involved:
1. Difference in service tax rate application
2. Denial of cenvat credit on debit notes
3. Cenvat credit for repair and maintenance of windmills
4. Cenvat credit for services related to sale of equity shares
5. Denial of cenvat credit for invoices lacking service provider's registration number

Analysis:
1. The first issue pertains to the difference in service tax rate application. The appellant argues that the service tax rate should be based on the date of provision of service, not the date of receipt of service charges. The Tribunal agrees with the appellant, citing precedent and sets aside the demand for the difference in service tax rate.

2. The second issue involves the denial of cenvat credit on debit notes. The appellant contends that debit notes should be considered valid documents for availing cenvat credit if they contain all necessary information. The Tribunal supports this argument, referencing previous cases, and overturns the demand related to cenvat credit on debit notes.

3. Moving on to the third issue, regarding cenvat credit for repair and maintenance of windmills, the Tribunal finds that the windmills are not directly related to the appellant's business of financing. As the windmills do not contribute to providing services or manufacturing activities, the cenvat credit for repair and maintenance services is deemed inadmissible, upholding the demand in this regard.

4. The fourth issue concerns cenvat credit for services related to the sale of equity shares. The Tribunal determines that these services are not connected to the output services of the appellant, as they were availed against investments from overall business income. Consequently, the credit for such services is deemed inadmissible, and the demand is upheld.

5. Lastly, the fifth issue revolves around the denial of cenvat credit for invoices lacking the service provider's registration number. The Tribunal rules that the absence of the registration number on invoices does not warrant denying cenvat credit, especially when there is no indication of non-payment of service tax. Therefore, the demand related to this issue is set aside.

In conclusion, the Tribunal partially allows the appeal, addressing each issue individually and providing detailed reasoning for its decisions. The penalties imposed are to be aligned with the upheld demands, as pronounced in court on 07/07/2017.