2024 (4) TMI 328 - AT - Service Tax

Recovery of CENVAT Credit - Cenvat Credit availed in excess of 20% of the amount payable on taxable output service in respect of services provided by them to SEZ, in terms of Rule 6 of CCR, 2002/2004 - extended period of limitation - demand of interest - HELD THAT - The issue is no longer res integra in view of the retrospective amendment, vide Finance Act 2012, to the effect that Rules 6 (1), (2) and (3) do not apply to Services provided to SEZ. Tribunal held in the case of TATA CONSULTING ENGINEERS LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI 2013 (9) TMI 183 - CESTAT MUMBAI held that appellants are rightly entitled to Cenvat credit on the inputs and input services used in or in relation to rendering of output services to a unit in SEZ or to a SEZ developer. Demand on the basis of the advances received by the appellants for rendering the services - HELD THAT - The demand is raised and confirmed on the basis of figures reflected in balance sheet without causing any enquiry as to whether the services in question were rendered or otherwise. It is not correct to confirm the demand just on the basis of balance sheet without identifying the service provider, service receiver and the consideration received thereof. Moreover, the appellant submits that most of the advances have been since returned to the respective parties as no services could be provided or the same were adjusted against services exported - Tribunal held in the case of M/S GO BINDAS ENTERTAINMENT PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, (NOIDA) 2019 (5) TMI 1487 - CESTAT ALLAHABAD that it is well settled law that no demand can be confirmed by comparing the ST-3 return figures with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the providing of taxable services. Appellants have received services from their associated enterprise for which expense was booked but remittance has not been made - HELD THAT - The appellant submitted that out of a total expense of 2.53 Cr under dispute, they have already paid 2.20 Cr and the Service Tax of the same has been also paid - Tribunal in the case of SIFY TECHNOLOGIES LTD. VERSUS LTU, CHENNAI 2012 (5) TMI 376 - CESTAT, CHENNAI held in the instant case, there was no provision either in Section 67 of the Finance Act or Rule 6 of the Service Tax Rules to suggest that in the case of transactions between associated enterprises, service tax has to be paid immediately on entry of the transaction in the books of account. Extended period of Limitation - HELD THAT - Department has not made out any case for extended period in view of the facts of the case - Extended period cannot be invoked. Demand of interest - HELD THAT - The appellants have paid the Service Tax of Rs. 2,60,783/- along with interest before the issuance of show cause notice. Therefore, demand cannot be sustained in view of the provisions of Law. When the main demand itself is held to be not sustainable the question of penalty does not arise. In view of the above, nothing survives in the impugned order and therefore, the same is liable to be set aside. Appeal allowed.

Issues Involved:

1. Availment of Cenvat Credit for services provided to SEZ.
2. Demand of Service Tax on advances received from customers.
3. Non-payment of Service Tax on services received from associated enterprises.
4. Invocation of extended period for demand.
5. Demand of interest and imposition of penalties.

Summary:

1. Availment of Cenvat Credit for services provided to SEZ:

The appellants challenged the demand based on Rule 6 of Cenvat Credit Rules, 2004, arguing that Rule 6 (6A) provides that Rules 6 (1), (2), and (3) do not apply to services provided to SEZ. The Tribunal held that the issue is no longer res integra due to the retrospective amendment by the Finance Act 2012, which clarified that services provided to SEZ are exempt from the reversal of Cenvat credit. The Tribunal cited the case of Tata Consulting Engineers Ltd. and the Bombay High Court's decision in Repro India Ltd., affirming that supplies to SEZ are deemed as "export" and thus exempt from Rule 6(3)(b).

2. Demand of Service Tax on advances received from customers:

The demand was based on entries in the balance sheet without corroborative evidence of services provided. The Tribunal found it incorrect to confirm the demand solely on balance sheet figures without identifying the service provider, receiver, and consideration. The Tribunal referenced Go Bindas Entertainment Ltd., stating that no demand can be confirmed without evidence that excess income in the balance sheet reflects taxable services provided.

3. Non-payment of Service Tax on services received from associated enterprises:

The appellant argued that they had paid a significant portion of the expenses and the corresponding Service Tax. The Tribunal held that the statutory provision for demanding Service Tax on transactions with associated enterprises was introduced only from 10-05-2008 and cannot be applied retrospectively. The Tribunal cited Sify Technologies Ltd., emphasizing that amendments introducing new provisions cannot be applied retrospectively unless explicitly stated.

4. Invocation of extended period for demand:

The Tribunal found that the extended period could not be invoked as the issue involved interpretation of law, which was evolving during the relevant period. There was no evidence of suppression, fraud, collusion, or intent to evade duty. The Tribunal concluded that the Department failed to justify the invocation of the extended period.

5. Demand of interest and imposition of penalties:

The appellants had paid the Service Tax along with interest before the issuance of the show cause notice. The Tribunal held that when the main demand is not sustainable, the question of penalty does not arise. Consequently, the demand for interest and penalties was set aside.

Conclusion:

The Tribunal allowed the appeal, setting aside the impugned order, and concluded that the demands and penalties imposed were not sustainable in law. The judgment was pronounced in the open court on 05/04/2024.

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