2022 (6) TMI 820 - AT - Service Tax

CENVAT Credit - duty paying invoices - credit availed on the strength of challan by which the service tax was deposited under the reverse charge mechanism on pointing out by audit - Rule 9(1)(bb) of Cenvat Credit Rules, 2004 - HELD THAT - The appellant have paid the service tax on reverse charge mechanism and taken the credit on the challans by which the service tax was paid. The department s case is that the appellant is not entitled to credit on such challans in terms of Rule 9(1)(bb) of Cenvat Credit Rules. The appellant s eligibility of credit is not on the basis of Rule 9(1)(bb) which is on the basis of Rule 9(1)(e) which provides that Cenvat Credit on challan which is evidence of payment of service tax on reverse charge mechanism therefore, the entire case of the department is on wrong footing. On plain reading of Rule 9(1)(e) of Cenvat Credit Rules, 2004, the appellant is entitled for Cenvat credit on the challan whereby, they have deposited the service tax on reverse charge mechanism - Credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the appellant is entitled to Cenvat credit on service tax paid under reverse charge mechanism based on challan pointed out by audit.

Analysis:
The main issue in this case revolves around the eligibility of the appellant for Cenvat credit on service tax paid under reverse charge mechanism. The department argues that since the appellant paid the service tax on pointing out by audit and not suo moto, they are not entitled to the credit as per Rule 9(1)(bb) of the Cenvat Credit Rules, 2004. On the other hand, the appellant contends that Rule 9(1)(bb) is not applicable, and they are eligible for the credit under Rule 9(1)(e). The appellant relies on various judgments to support their argument.

The tribunal carefully considered both sides' submissions and the records. It was observed that the appellant paid the service tax under reverse charge mechanism and took credit based on the challans used for payment. The tribunal noted that the department's argument based on Rule 9(1)(bb) was incorrect as the appellant's eligibility for credit falls under Rule 9(1)(e), which allows for Cenvat credit on challans evidencing payment of service tax under reverse charge mechanism. The tribunal referenced a previous case where a similar issue was addressed, emphasizing that Rule 9(1)(bb) applies to providers of output service, not recipients like the appellant. Therefore, the appellant's case aligns with Rule 9(1)(e) and is supported by relevant precedents.

In conclusion, the tribunal found no merit in the impugned order and set it aside, allowing the appeal. The appellant was deemed entitled to Cenvat credit on the challan used for depositing service tax under the reverse charge mechanism, in accordance with Rule 9(1)(e) of the Cenvat Credit Rules, 2004. The judgment clarifies the distinction between Rule 9(1)(bb) and Rule 9(1)(e) in determining the eligibility for Cenvat credit in cases of service tax paid under reverse charge mechanism.