2019 (6) TMI 267 - AT - Service Tax

CENVAT credit - subsequent registration of the unit - whether for the input services received during the period 2007 08 to 2009 10 credit was taken during the period 2009 10, whether the same have been rightly rejected? - HELD THAT - It is not the case that the appellant was not at all registered. They were registered at Wardha. Thus rejection of credit of the CENVAT is not tenable, in view taking of subsequent registration for the Mumbai office - further the appellant were rendering taxable service right from the financial year 2007 08, for the same project for which input services received, the invoice for output service in March 2010 was raised upon completion of the project, as per the agreement between the parties. The appellant is entitled to take the CENVAT credit - case remanded to the Adjudicating authority for the limited purpose of verification of the invoices for input services received prior to the date of registration at Mumbai office. Penalty - HELD THAT - There is no case of misconduct on the part of the appellant - penalties set aside. Appeal allowed by way of remand.

Summary

Issues:
1. Admissibility of CENVAT credit for input services received before registration
2. Rejection of CENVAT credit by the revenue department
3. Appeal against rejection of credit by the appellant
4. Scope of the show cause notice
5. Justification for rejecting the credit by the revenue department
6. Appeal arguments regarding registration and rendering taxable services
7. Rival contentions by the revenue department
8. Decision on the admissibility of CENVAT credit and penalties

Analysis:
The primary issue in this appeal before the Appellate Tribunal CESTAT MUMBAI was the admissibility of CENVAT credit for input services received before registration. The appellant, engaged in construction services, had availed such credit for payment of service tax, which was later questioned by the revenue department. The revenue department contended that the credit taken before obtaining service tax registration in Mumbai was not admissible, leading to a show cause notice for recovery of the credit amount along with penalties and interest.

The revenue department's stance was supported by the Learned Commissioner (Appeals), who emphasized the necessity of registration for availing credit, citing relevant legal provisions. The rejection of credit was based on the failure of the appellant to provide evidence of rendering taxable services during the period of receiving input services. The Commissioner also dismissed the limitation argument, stating that the department's knowledge of the situation arose from its own inquiry.

In response, the appellant argued that they were registered at the Wardha office and subsequently at the Mumbai office, and had indeed been providing taxable services since 2007-08. They contended that the rejection of credit was unjustified, as they were eligible to avail CENVAT credit based on their registration and service provision history. The appellant sought a remand for further verification of facts to support their claim for credit.

After considering the arguments from both sides, the Tribunal found in favor of the appellant. The Tribunal noted that the appellant was registered at the Wardha office, rendering taxable services since 2007-08, and had subsequently obtained registration for the Mumbai office. The rejection of credit was deemed untenable, and the appellant was held entitled to the CENVAT credit. Penalties under sections 77 and 78 were set aside, with a direction for the appellant to provide detailed information to the Adjudicating authority for verification purposes.

In conclusion, the Tribunal allowed the appeal, emphasizing the appellant's eligibility for CENVAT credit based on their registration status and service provision history. The decision highlighted the importance of proper registration and compliance with legal requirements for availing tax credits in such cases.