2023 (8) TMI 849 - AT - Service Tax

Wrongful availment of CENVAT Credit - input services - broadcasting agencies - extended period of limitation - whether the demand is time barred for the period 10.09.2004 to 30.09.2008 as the show cause notice for the same was issued on 09.04.2010? - levy of interest and penalties - HELD THAT - The appellant has entered into an agreement dated 01.04.2005 with Wire and Wireless India Ltd. (WWIL) to manage and run the cable television network on behalf of WWIL within the jurisdiction of Rohtak and for such services the appellant would be receiving 90% of the revenue generated by WWIL as consideration on which the appellant has discharged the Service tax under the category of BAS. Further, it is also a fact that for carrying out the obligations under the Agreement, the Appellant also enters into agreements with various broadcasting agencies for receiving the broadcasting signals for retransmitting the same to subscriber cable operator of WWIL. The broadcasters have issued the invoices in the name of the Appellant with applicable service tax which was duly paid by the Appellant. These broadcastings services were received by the Appellant as an input service for providing the taxable output service of managing the system network of WWIL - it is also found that the Ld. Commissioner has not properly gone through the agreements between the appellant and the WWIL and the broadcasting agencies and has wrongly come to the conclusion that the WWIL was the service provider of cable network and they were entitled to avail cenvat credit on the invoices issued by broadcasting agencies and not the appellant. The Ld. Commissioner has not considered the material on fact that there is no agreement between WWIL and the broadcastings agencies and the agreement between the appellant and various broadcasting agencies makes no reference of the agreement between WWIL and the appellant. Therefore, the agreements entered with the broadcasting agencies were not on behalf of WWIL, but on its own behalf by the appellant. Further, perusal of the invoices issued by the broadcasting agencies to the appellant on which the appellant has paid the service tax gives him a right to claim the cenvat credit on input services. Extended period of limitation - HELD THAT - The substantial demand is time barred because the show cause notice was issued on 09.04.2010 for the period from 10.09.2004 to 30.09.2008 by invoking the extended period of limitation in the absence of any malafide and suppression of facts on the part of the appellant. The appellant has been filing the ST-returns with full disclosure of the cenvat credit amount availed on the services and the department was already aware of the fact about the availment of cenvat credit of tax paid on broadcasting services. Hence, the extended period in such cases cannot be invoked as held in the case of Bharat Hotels Limited 2018 (2) TMI 23 - DELHI HIGH COURT . The impugned order denying the cenvat credit is not sustainable in law - Appeal allowed.

Summary

Issues:
The issues involved in the judgment are the wrongful availing of CENVAT Credit by the appellant, the demand for recovery of irregularly availed credit, and the imposition of penalties under the Finance Act, 1994.

Wrongful Availing of CENVAT Credit:
The appellant, registered with the Central Excise Department for providing taxable output services, was observed to have wrongly availed CENVAT Credit of service tax paid on invoices raised by broadcasting agencies. The appellant managed the cable television network business of another company within a specific jurisdiction. The Commissioner confirmed the demand for recovery of irregularly availed CENVAT Credit along with penalties. The appellant argued that the services received were input services used for providing output services, fulfilling the conditions under the Cenvat Credit Rules. The agreements with broadcasting agencies were made on behalf of the appellant, not the other company, entitling them to claim the credit. The Tribunal found that the appellant met the criteria for input services and was entitled to the credit.

Time Limitation and Penalties:
The appellant contended that the demand was time-barred as the show cause notice was issued after the normal limitation period. They cited a relevant court decision to support this argument. Regarding interest and penalties, the appellant argued that if the demand for CENVAT Credit was unsustainable, no penalties should be imposed. The Tribunal considered the submissions and found that the demand for a substantial amount was indeed time-barred. As there was no malafide intent or suppression of facts, the extended limitation period could not be invoked. Therefore, the Tribunal set aside the order denying the CENVAT Credit, ruling in favor of the appellant.

Conclusion:
In conclusion, the judgment by the Appellate Tribunal CESTAT Chandigarh addressed the issues of wrongful availing of CENVAT Credit by the appellant and the imposition of penalties. The Tribunal found that the appellant was entitled to claim the credit as the services received were indeed input services used for providing output services. Additionally, the demand was considered time-barred, leading to the decision to set aside the order denying the CENVAT Credit, thereby allowing the appeal of the appellant.