2021 (12) TMI 73 - AT - Central Excise

CENVAT Credit - transfer of credit - appellant have entered into service agreement with clients of different countries - requirement of ISD registration, for their Mumbai office from which they have transferred the credit - case of petitioner is that there is only one factory and one office there is no need for registration of ISD - time limitation - period from April 2011 to October 2015 - HELD THAT - It is seen that appellant has claimed they have only one manufacturing unit. Revenue has not produced any evidence otherwise. In these circumstances there is no need of ISD Registration. There is no categorical finding of Commissioner on the nature of services and where the same are used. In the statement of Shri Minesh Gupta Manager, Warehousing and Stores, he has not clarified where these services have been used and the purpose of availing these input services. The manner of distribution of expense on the fixed percentage basis has also not been elaborated in the order or in the notice. In these circumstances we constrained to remand the matter relating to appeal no. E/10987/2016 back to Adjudicating Authority to give clear finding in respect of each of this service disputed for the purpose of Cenvat credit. Appeal disposed off.

Issues Involved:
1. Disallowance of Cenvat credit on certain services.
2. Demand of interest.
3. Imposition of penalty.
4. Requirement of Input Service Distributor (ISD) registration for the Mumbai office.
5. Bar of limitation on the Show Cause Notice (SCN).

Issue-wise Detailed Analysis:

1. Disallowance of Cenvat Credit on Certain Services:
The appellant, Styrolution India Pvt Ltd, contested the disallowance of Cenvat credit on services availed at their marketing office in Mumbai, which were used for their manufacturing unit in Dehaj. The appellant argued that these services were integral to their manufacturing operations and cited Circular No. 943/04/2011-CX, asserting that there is no necessity for a direct nexus between taxable services and the manufacture and clearance of final products. The appellant also referenced the case of Valco Industries Ltd., where it was held that bills received at headquarters can be transferred to the factory for credit without ISD registration.

2. Demand of Interest and Imposition of Penalty:
The appellant argued that the SCN was barred by limitation as it covered the period from April 2011 to October 2015 but was issued on 23.02.2016. They claimed that the credit was taken based on a bona fide belief and that no malafide intent was involved, thus the extended period of limitation should not apply. The appellant also highlighted that they had been regularly filing returns and undergoing audits, which should negate the demand for interest and imposition of penalties.

3. Requirement of ISD Registration for the Mumbai Office:
The appellant maintained that since they had only one manufacturing unit and one marketing office, there was no need for ISD registration. They relied on the tribunal’s decision in the case of Valco Industries Ltd., which supported their stance that credit could be taken by the factory based on duty-paying documents addressed to the main office without ISD registration. The Revenue, however, argued that the appellant had multiple units, and the services were common input services utilized for all companies, necessitating ISD registration.

4. Bar of Limitation on the SCN:
The appellant contended that the SCN was issued beyond the normal period of limitation and should be considered time-barred. They argued that since the issue involved interpretation of Cenvat Credit Rules and they acted under a bona fide belief, the extended period of limitation should not apply. They also pointed out that regular audits and filings were conducted, which should have brought any discrepancies to light earlier.

Judgment:
The tribunal analyzed the nature of services and their usage. It was found that several services, such as legal services, chartered accountant services, insurance surveyor’s services, maintenance or repair services, manpower recruitment and supply services, membership club services, storage and warehousing services, banking and other financial services, business auxiliary services, online telecom network services, cargo handling services, commercial coaching and training services, IT services, courier services, taxation consultancy services, renting of immovable property services, and business auxiliary services were admissible for Cenvat credit. However, services related to sales commission were not admissible based on the Gujarat High Court’s decision in the case of Cadila.

For the appeal No E/10987/2016, the tribunal noted that there was no categorical finding on the nature and usage of services, and the statement of Shri Minesh Gupta did not clarify the purpose of availing these services. Consequently, this matter was remanded back to the Adjudicating Authority for a clear finding on each service disputed for Cenvat credit.

For appeal No E/12070/2016, the credit of service tax was partially allowed as specified in the detailed findings.

Conclusion:
The tribunal partially allowed the appeal regarding the disallowance of Cenvat credit, remanded one appeal for further investigation, and upheld the necessity of ISD registration only if multiple units were involved. The SCN was not considered time-barred due to the complexity of the issue and regular audits conducted. The appeals were disposed of accordingly.

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