2019 (10) TMI 1150 - AT - Service Tax

CENVAT credit - input services - intermediary services - tri-partite agreement - period April, 2014 to March 2015 during the period August 2015 to November 2015 - HELD THAT - The appellant was having a tripartite agreement wherein the intermediary services provided to the appellant used to issue invoices to M/s Fastway and the appellant was taken cenvat credit thereof. Later on, the said trade practice was abolished and the intermediary broadcaster has issued direct invoices and the appellant took cenvat credit. In fact that services have been provided to the appellant by intermediary broadcasters who issued invoices to the appellant and the appellant paid the amount of services rendered by intermediaries to them directly not through M/s Fastway. As due to that reason the appellant had to file revised ST-3 returns and taken cenvat credit on the invoices issued by intermediary broadcasters, in that circumstances, the availment of cenvat credit of services are not in dispute and payment thereof, therefore, the cenvat credit cannot be denied. The adjudicating authority has mainly relied on the original returns. In fact, the appellant has filed revised returns, in that circumstances, the original return filed by the assessee are null void, the same cannot be considered any legal documents. Therefore, reliance placed by the Ld. Adjudicating Authority is misplaced - thus, the appellant has correctly availed the cenvat credit on the strength of revised ST-3 returns for the period ending Sept. 2014 and March 2015, therefore, no demand of service tax can be raised against the appellant. CENVAT Credit - credit also sought to be denied on the ground that the certificate does not have the name of the service provider - HELD THAT - The service provider is M/s Surya Cables through its proprietor and availment of services and payment thereof is not in dispute, therefore, the cenvat credit cannot be denied to the appellant. Accordingly, the denial of Cenvat Credit of ₹ 23,54,179/- is set-aside. CENVAT credit - credit also sought to be denied on the ground that M/s North India Distribution is having these addresses in the invoices other than the address given in the registration certificate - HELD THAT - The same cannot be the reason to deny cenvat credit when it is a fact on record the appellant has received the services and paid the service tax, therefore, the cenvat credit cannot be denied. Credit allowed - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Denial of Cenvat credit based on revised ST-3 returns.
2. Validity of invoices from M/s Surya Cables and M/s North India Distribution.
3. Allegations of back-dating and substitution of invoices.
4. Non-receipt of input services and lack of supporting documents.

Issue-wise Detailed Analysis:

1. Denial of Cenvat Credit Based on Revised ST-3 Returns:
The appellant was engaged in broadcasting services and availed Cenvat credit under the Cenvat Credit Rules, 2004. An audit revealed discrepancies between original and revised ST-3 returns for the period ending September 2014 and March 2015. The appellant had originally claimed Cenvat credit of ?5,07,88,431/- but revised it to ?4,19,38,611/-. The adjudicating authority denied the credit, alleging back-dating and substitution of invoices. However, the Tribunal found that the revised returns were filed due to a change in trade practice, where intermediary broadcasters issued direct invoices to the appellant instead of through M/s Fastway. The Tribunal held that since the services were provided and payment was made, the Cenvat credit could not be denied based on revised returns, rendering the original returns null and void.

2. Validity of Invoices from M/s Surya Cables and M/s North India Distribution:
The appellant availed Cenvat credit of ?23,54,179/- based on invoices from M/s Surya Cables, whose registration was in the name of Shri Sarabjit Singh, and ?2,00,232/- from M/s North India Distribution, whose invoices had a different address than the registration certificate. The Tribunal noted that the services were indeed provided, and the service tax was paid, thereby validating the Cenvat credit. The discrepancies in registration details did not negate the actual receipt of services.

3. Allegations of Back-dating and Substitution of Invoices:
The audit observed that the appellant had availed Cenvat credit by back-dating entries and substituting invoices without actual receipt of input services. The Tribunal found that the appellant had revised the returns to reflect the correct billing practice, where intermediaries directly billed the appellant. The Tribunal concluded that the services were received, and the credit was taken correctly, dismissing allegations of fraudulent intent.

4. Non-receipt of Input Services and Lack of Supporting Documents:
The audit accused the appellant of availing Cenvat credit without receiving input services and failing to provide supporting invoices. Despite multiple requests, the appellant did not furnish the necessary documents. The Tribunal, however, determined that the services were indeed provided as per the revised billing arrangement, and the payment for these services was made. Thus, the denial of Cenvat credit on these grounds was unjustified.

Conclusion:
The Tribunal allowed the appeal, setting aside the denial of Cenvat credit. It held that the appellant had correctly availed the Cenvat credit based on revised ST-3 returns and validated invoices, and there was no intent of evasion of service tax. The discrepancies in registration details and the revised billing practice did not warrant the denial of Cenvat credit. The appeal was allowed with consequential relief.

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