2019 (3) TMI 1086 - AT - Central Excise

CENVAT Credit - denial of credit for the reason that the service provider has not paid the service tax to the Central Government - Held that - Interestingly, instead of initiating proceedings against the service provider who has defaulted in making the payment of service tax, the department has initiated proceedings against the appellant who has availed credit on such input services. The cause of the show cause itself is without any legal or factual basis. The demand therefore cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of CENVAT credit on invoices with incorrect service tax registration number.
- Disallowance of credit due to service provider's failure to pay service tax.
- Legal basis for initiating proceedings against the appellant instead of the service provider.

Analysis:
1. The case involved the appellants availing CENVAT credit on invoices issued by a service provider, M/s. EEE, for repairs and maintenance services. The department issued a show cause notice proposing to disallow the credit due to discrepancies in the service tax registration number and non-payment of service tax by M/s. EEE.

2. The appellant argued that they had indeed availed the services from M/s. EEE and had paid the service tax along with service charges to the service provider. The appellant contended that any error in quoting the service tax registration number should not lead to disallowance of credit, especially when there was no fraudulent intent on their part. Reference was made to Rule 9(2) of CCR, 2004, which allows credit if the accounts are in order.

3. The appellant further highlighted that the department had erred in targeting them with the show cause notice instead of taking action against the defaulting service provider, M/s. EEE. The appellant argued that since they had fulfilled their obligations by paying the service tax, any liability on the part of the service provider should not impact their credit eligibility.

4. The Appellate Tribunal found merit in the appellant's arguments, noting that the department's decision to pursue proceedings against the appellant, who had paid the service tax, instead of the defaulting service provider was legally unfounded. The Tribunal held that the cause of the show cause notice lacked legal or factual basis, leading to the setting aside of the impugned order and allowing the appeal with consequential relief, if any.

5. In conclusion, the judgment emphasized the importance of proper verification and adherence to legal procedures, directing that actions against credit availment should be based on valid grounds and not unfairly burden the appellant for the service provider's non-compliance with tax obligations.