2017 (11) TMI 880 - AT - Service Tax

CENVAT credit - construction services - input services - principles of res-judicata - Held that - the construction was raised at Hosakote factory but the appellant has wrongly taken the credit at their Maruthalli factory and when it was pointed out during the audit the appellant paid back the credit which was appropriated by the Revenue - the period in dispute is March 2008 during that time, the construction service fall in the definition of input service under Rule 2(l) under the phrase setting up of a factory and the Commissioner (Appeals) has wrongly applied the amended input service definition which came into force from 01.04.2011 which is probably wrong. Also, the subsequent demand at Hosakote factory is barred by principles of constructive res judicata as it amounts to double demand for the same service and it is not permitted under law. Credit allowed - appeal allowed - decided in favor of appellant.

Issues:
1. Availment of ineligible Cenvat credit on construction service.
2. Rejection of appeal by Commissioner (Appeals).
3. Double denial of Cenvat credit in subsequent appeal.
4. Application of constructive res judicata principle.
5. Interpretation of input service definition.
6. Correctness of address in service tax invoice.
7. Applicability of Rule 6(5) of Cenvat Credit Rules, 2004.
8. Principle of constructive res judicata for subsequent demand.

Analysis:

Issue 1: Availment of ineligible Cenvat credit on construction service
The appellants, engaged in manufacturing, availed Cenvat credit on construction service not used in or in relation to the manufacture of final products. Audit revealed the ineligible credit, leading to a show-cause notice and subsequent confirmation of demand, interest, and penalty by the original authority.

Issue 2: Rejection of appeal by Commissioner (Appeals)
The Commissioner (Appeals) rejected the appeal, upholding the demand and penalty. The appellant challenged this decision, leading to the present appeal before the Tribunal.

Issue 3: Double denial of Cenvat credit in subsequent appeal
In a subsequent appeal, the same Cenvat credit was denied again, resulting in doubled demand, interest, and penalty. The appellant argued that this constituted constructive res judicata, rendering the subsequent demand void ab initio.

Issue 4: Application of constructive res judicata principle
The appellant contended that the subsequent show-cause notice for the same demand was barred by the principle of constructive res judicata, as it amounted to a double demand for the same service, making it legally unsustainable.

Issue 5: Interpretation of input service definition
The Tribunal analyzed the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. It found that the construction service fell under the inclusive definition during the relevant period, contrary to the Commissioner (Appeals) applying the amended definition.

Issue 6: Correctness of address in service tax invoice
The appellant argued that the incorrect address in the service tax invoice was a curable defect under Rule 9(2) of the Cenvat Credit Rules, 2004. The contractor subsequently corrected the invoice, making it a valid document for claiming credits on the construction service.

Issue 7: Applicability of Rule 6(5) of Cenvat Credit Rules, 2004
The Tribunal noted that before the omission of Rule 6(5) w.e.f. 01.04.2011, manufacturers were allowed full credit on seventeen taxable services, including construction services. The appellant was entitled to take full credit during the relevant period.

Issue 8: Principle of constructive res judicata for subsequent demand
The Tribunal held that the subsequent demand for Cenvat credit at another factory was barred by the principle of constructive res judicata, as it amounted to double demand for the same service, which was impermissible under the law.

In conclusion, the Tribunal allowed both appeals, setting aside the impugned order and providing consequential relief, if any, based on the detailed analysis of the issues involved.

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