9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 775 - HC - Service TaxCENVAT credit - Call centre services - non-registered premises - duty paying invoices - invoices containing name of the petitioner prior to its merger - case of the department is that since the invoices were raised in the name of unregistered premises, therefore, the petitioner s company is not eligible to claim the CENVAT Credit - according to petitioner, there is no provision under the CENVAT Credit Rules, 2004 nor in Service Tax Rules, 1994 which mandates/provides that the registered address of the recipient is mandatory and has to be mentioned in the invoices for the availment of the credit - Section 69 of the Finance Act, 1994 - invoice issued prior to registration. Held that - the adjudicating authority namely Commissioner himself has held that in regard to the issue no.(a) of ₹ 18.35 crores the Commissioner has dropped the demand for recovering of CENVAT Credit on the similar set of facts where the Commissioner has held under Rule 4(A) of Service Tax Rules, 1994, the requirement is only to the name and address of the person receiving the taxable service and there is no requirement that the name and registered address of the person receiving the taxable service are appeared on the invoice for taking input service credit and this has been repeatedly laid down by the various CESTAT Tribunals - Admittedly, against the order of the Commissioner dated 30.11.2015 no appeal has been preferred by the Department, therefore, in similar set of fact, the denial of the CENVAT Credit is appears to be prima facie wrong which requires consideration by the CESTAT. CENVAT credit - invoice containing old name of company - invoice issued prior to registration - Held that - The aforesaid two issue involving a dispute and approximate denial of CENVAT Credit of ₹ 89.10 lakhs 98.19 lakhs total sum of ₹ 187.29 lakhs (approximately) is yet to be decided by the CESTAT for which we refuse to accept the claim of the petitioner. Pre-deposit - Section 3F of the Central Excise Act, 1944 - Held that - petitioner be dispensed with the condition of pre-deposit of 7.5% for entertainment of the appeal by the appellate Tribunal with respect of issue of non-registered premises - pre-deposit for other two issues upheld. Petition allowed in part.
Issues Involved:
1. Quashing of the order dated 16.08.2017 by the Commissioner of Service Tax, Central Excise, and CGST Commissionerate, NOIDA. 2. Mandamus directing the Assistant Registrar, CESTAT, Allahabad to dispense with the requirement of pre-deposit of 7.5% of the assessed duty. 3. Eligibility of CENVAT Credit based on invoices with unregistered premises addresses. 4. Eligibility of CENVAT Credit based on invoices with the erstwhile name of the petitioner. 5. Eligibility of CENVAT Credit for services availed during the period when the petitioner was not registered with the Service Tax Department. Detailed Analysis: 1. Quashing of Order Dated 16.08.2017: The petitioner sought the quashing of the order dated 16.08.2017 issued by the Commissioner of Service Tax, Central Excise, and CGST Commissionerate, NOIDA. The order disallowed CENVAT Credit amounting to ?18.35 crores on the grounds that invoices were raised in the name of unregistered premises. The court noted the petitioner’s argument that there is no provision under the CENVAT Credit Rules, 2004, or Service Tax Rules, 1994, mandating the registered address of the recipient on invoices for availing credit. The petitioner cited Rule 9 of the CENVAT Credit Rules and Rule 4A of the Service Tax Rules to support this claim. The court acknowledged that the Commissioner had previously ruled similarly in favor of the petitioner on the same issue for an earlier period, and no appeal was filed against that decision by the Revenue. 2. Mandamus for Dispensation of Pre-Deposit: The petitioner also sought a mandamus directing the Assistant Registrar, CESTAT, Allahabad, to dispense with the requirement of pre-deposit of 7.5% of the assessed duty while filing the appeal. The court referred to the amended provisions of Section 35F of the Central Excise Act, 1944, which mandates a pre-deposit of 7.5% of the duty or penalty in dispute for appeals. The court cited precedents, including the Supreme Court's judgment in Shyam Kishore, which affirmed that the High Court has the jurisdiction to dispense with the requirement of pre-deposit under Article 226 of the Constitution in appropriate cases. 3. Invoices with Unregistered Premises Addresses: The petitioner argued that the invoices had the address of the premises where services were received and output services were performed, and not the registered address, which led to the disallowance of CENVAT Credit. The court noted that Rule 4A of the Service Tax Rules requires only the name and address of the person receiving the taxable service, not the registered address. The court observed that the Commissioner had previously accepted this interpretation for the period 2005-06 to 2010-11, and no appeal was filed against that decision, making it binding. 4. Invoices with Erstwhile Name: The petitioner contended that invoices bearing the erstwhile name of the company prior to its merger on 02.12.2011 should not disqualify them from availing CENVAT Credit. The court recognized that the merger was pursuant to an order of the Bombay High Court and that the petitioner, as the resulting company, should be entitled to the credit. However, the Commissioner had disallowed the credit amounting to ?89.10 lakhs on this ground. 5. Services Availed During Unregistered Period: The petitioner was not registered with the Service Tax Department from January 2012 to March 2012, leading to the disallowance of CENVAT Credit amounting to ?98.19 lakhs for services availed during this period. The court noted that the petitioner’s failure to register during this period was a procedural lapse, but the credit was disallowed by the Commissioner. Conclusion: The court allowed the writ petition in part. It dispensed with the requirement of pre-deposit of 7.5% for the appeal concerning the issue of invoices with unregistered premises addresses, as this issue was previously settled in favor of the petitioner by the Commissioner and no appeal was filed by the Revenue. However, for the issues related to invoices with the erstwhile name and services availed during the unregistered period, the court directed the petitioner to comply with the pre-condition of pre-deposit as provided under Section 35F of the Central Excise Act, 1944.
|
