2018 (9) TMI 1597 - AT - Service Tax

CENVAT Credit - capita goods removed from outside the premises - removal from Stores to 290 exchanges - Rule 14 of the CCR 2004 read with proviso to Section 73 (1) of the Finance Act, 1994 - Held that - The issue stands squarely covered by the decision in the appellant s own case, in the case of BSNL Vs CCE Jaipur 2017 (5) TMI 896 - CESTAT NEW DELHI , where it was held that In the absence of any allegation of diversion of capital goods for other than intended purpose or their clearance to third party, the Revenue is not justified in denying credit on such capital goods which are admittedly installed and utilized for providing taxable output service - Demand do not sustain. CENVAT Credit - duty paying documents - Rule 9 of CCR - reason for rejection is that post offices are not registered with the department and such Statements / bills / invoices raised by them do not become a valid document prescribed under Rule 9 - Held that - Appellant has adduced proof of the Registration Certification No. TMPAS5321NST001 issued to the Senior Post Master, Head Post office, Trichy, copy of which has also been filed in pages 46-47 of the paper book. This being so, just because the registration certificate has not been mentioned in the TRC document issued by the Post Master, this by itself should not be a reason for denial of input service credit, especially when considering that all the other particulars required as per Rule 9 ibid have been indicated in all such documents - credit allowed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Recovery of cenvat credit on capital goods removed from premises
2. Recovery of wrongly taken cenvat credit based on TRC Collection Statement

Issue 1: Recovery of cenvat credit on capital goods removed from premises

The appellants, providers of taxable services under Telecommunication Services, availed cenvat credit on capital goods that were later distributed from stores to 290 exchanges for installation. The issue revolved around Rule 3(5) of Cenvat Credit Rules, which required payment equal to the credit availed if capital goods were removed from the provider's premises. The demand for recovery of ?2,04,81,127/- was made under Rule 14 of CCR 2004 read with proviso to Section 73(1) of the Finance Act, 1994. The Commissioner confirmed this demand in the impugned order dated 20.12.2013. However, the appellants argued that the extended period for recovery cannot be invoked against a Public Sector Undertaking of the Government of India, thus challenging the demand on the grounds of limitation. They also contended that the new rule allowing unrestricted removal of capital goods from 1.4.2008 should apply, providing them with the benefit of the new rule. The Tribunal, citing precedents, held that the recovery of cenvat credit on capital goods removed from the registered premises could not be sustained, setting aside the demand.

Issue 2: Recovery of wrongly taken cenvat credit based on TRC Collection Statement

The appellants had taken credit amounting to ?9,83,075/- based on the Schedule of TRC Collection and Payment Statement issued by the Post Master, Head Post office, Trichy. However, it was found that the documents did not comply with Rule 9 of CCR, leading to the issuance of a show cause notice proposing recovery of the credit amount. The appellants argued that the Post Master was registered with the Central Excise Department, Trichy, and provided evidence of registration. The Tribunal noted that the TRC documents did not meet the specified criteria under Rule 9 but acknowledged the credibility of the Post Master's certification and the Department of Posts as a government entity. The omission of the registration number was considered a curable defect, and since all other required particulars were present in the documents, the denial of input service credit based on this ground was deemed unjustified. Consequently, the demand for recovery of ?9,83,075/- was set aside by the Tribunal.

In conclusion, the Tribunal allowed the appeal on both issues, setting aside the demands for recovery of cenvat credit on capital goods removed from the registered premises and wrongly taken credit based on TRC Collection Statement. The decision was based on legal interpretations, precedents, and the specific circumstances of the case, providing relief to the appellants in both instances.