2025 (4) TMI 966 - AT - Service Tax

CENVAT Credit - proportionate credit reversal made by the appellant for the period April 2011 to September 2012 - sufficient compliance with Rule 6(3) of the Cenvat Credit Rules 2004 or not - credit availed on the basis of photocopies of documents - invocation of extended period of limitation. Whether the proportionate credit reversal for the period April 2011-Sept. 2012 is sufficient compliance to Rule 6(3) of the Cenvat Credit Rules 2004? - HELD THAT - Once the appellant have reversed proportionate credit on common input service attributable to the exempted service along with interest it restores the position of cenvat credit not having been availed at all and the demand for 5%/6% of the value of exempted services cannot be sustained. In the case of Chandrapur Megnet Wires P. Limited vs. CCE Nagpur 1995 (5) TMI 148 - CEGAT NEW DELHI the Hon ble Supreme Court has held that we see no reason why the assessee cannot make a debit entry in the credit account before removal of the exempted final product. If this debit entry is permissible to be made credit entry for the duties pald on the inputs utilised in manufacture of the final exempted product will stand deleted in the accounts of the assessee. In such a situation it cannot be said that the assessee has taken credit for the duty paid on the inputs utilised in the manufacture of the final exempted product under Rule 57A. In other words the claim for exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of the duty paid on the inputs used in manufacture of these goods. - the demand cannot be sustained. Whether credit is required to be reversed for the period Octber 2012-March 2015? - HELD THAT - From the date of the certificate it is evident that this was not presented before the adjudicating authority. However there are no infirmity in the said CA Certificates - It is not clear as to in what form the adjudicating authority wanted the CA Certificate to be submitted in order to satisfy the requirements of the Department. It is well settled principle that CA Certificate cannot be rejected unless it is evidenced that the same is fake or forged. Consequently the CA Certificates submitted are acceptable to establish that no credit was availed on common input services for the period October 2012 to March 2015. Whether credit availed on photocopies of documents is admissible? - HELD THAT - The appellant has claimed that the original invoices were submitted to the Range Office vide their letter dated 11.03.2014 a copy of which is annexed to the appeal paper book. It is noted that the said letter is addressed to Superintendent Service Tax Range-I Division-I Noida and the receipt stamp of the Range date 12 March 2014 is clearly visible. This contention of the appellant has been boldly rejected by the adjudicating authority holding that the letter has not been acknowledged and the signature appended is not identifiable. Once a evidence of producing the original invoices before the Jurisdictional Officer has been submitted unless it is evidenced that the seal/signature was forged the submission deserves to be accepted. Whether extended period is rightly invoked? - HELD THAT - The Audit team carries out a very comprehensive action beginning from creation of the Assessee Master file to the actual audit of the records of an assessee. In the instant case it is noted that the audit was undertaken over 3-4 days in the year 2012 looking into all the records maintained by the appellant. Further as the appellant being subjected to audit from time to time the invocation of extended period is neither warranted not substantiated. Once all the statutory records of the appellant has been audited and the appellant has filed this returns regularly the Department cannot invoke the extended period. Conclusion - i) The position of cenvat credit not having been availed at all and the demand for 5%/6% of the value of exempted services cannot be sustained. ii) The CA Certificates submitted are acceptable to establish that no credit was availed on common input services for the period October 2012 to March 2015. iii) Once a evidence of producing the original invoices before the Jurisdictional Officer has been submitted unless it is evidenced that the seal/signature was forged the submission deserves to be accepted. iv) Once all the statutory records of the appellant has been audited and the appellant has filed this returns regularly the Department cannot invoke the extended period. The impugned order is set aside - appeal allowed.

The core legal issues considered by the Tribunal in this appeal are as follows:

(i) Whether the proportionate credit reversal made by the appellant for the period April 2011 to September 2012 constitutes sufficient compliance with Rule 6(3) of the Cenvat Credit Rules, 2004;

(ii) Whether the appellant was required to reverse credit for the period October 2012 to March 2015;

(iii) Whether credit availed on the basis of photocopies of documents is admissible;

(iv) Whether the extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994 was rightly invoked by the Department.

Issue-wise Detailed Analysis:

(i) Compliance with Rule 6(3) of the Cenvat Credit Rules for April 2011 to September 2012

The legal framework governing this issue is Rule 6(3) of the Cenvat Credit Rules, 2004, which prescribes the manner in which credit has to be reversed when inputs or input services are used partly for exempted services. The Department contended that the appellant did not comply with the conditions of Rule 6(3)(ii), including failure to give intimation to the Superintendent, and hence reversal of 5/6% of the value of exempted services was required.

The appellant argued that the option under Rule 6(3) is not absolute and that the assessee is free to choose any of the prescribed options for reversal. They relied on several precedents where it was held that reversal of proportionate credit restores the position as if credit was never availed, thus negating the demand for additional reversal under Rule 6(3)(ii).

The Tribunal noted that this issue is no longer res-integra and relied on authoritative precedents, including the Supreme Court decision in Chandrapur Magnet Wires P. Ltd. vs. CCE, which clarified that reversal of credit attributable to exempted goods or services amounts to non-availment of credit. The Tribunal also referred to various Tribunal decisions which held that once proportionate credit is reversed along with interest, the demand for 5%/6% of the value of exempted services is unsustainable.

Further, the Tribunal emphasized that the objective of Rule 6 is to prevent illegal availing of credit on exempted services, and if the appellant has reversed the credit correctly, the Department cannot claim an additional amount. The appellant's failure to give intimation as required under the Rules does not invalidate the reversal already made.

Consequently, the Tribunal concluded that the demand for the period April 2011 to September 2012 based on non-compliance with Rule 6(3) is not sustainable.

(ii) Requirement of Credit Reversal for October 2012 to March 2015

The appellant contended that no common credit was availed during this period and supported this claim with Chartered Accountant (CA) certificates for October 2012 to March 2015, which were not fully considered by the adjudicating authority. The Department challenged the validity of the CA certificates, particularly for the period prior to 2014-15, and alleged lack of proper certification and documentary evidence for some periods.

The Tribunal observed that a CA certificate is expert evidence and cannot be rejected unless proven to be fake or forged. The appellant produced a CA certificate dated 18.03.2019 for October 2012 to March 2013, which was not presented before the adjudicating authority but was considered by the Tribunal. The certificate explicitly stated that no Cenvat credit was availed on common input services for exempt services during the period in question.

The Tribunal found no infirmity in the CA certificates and held that they are acceptable proof that no credit was availed on common input services for the period October 2012 to March 2015. Therefore, the demand for reversal of credit for this period is not sustainable.

(iii) Admissibility of Credit Availment on Photocopies of Documents

The Department disallowed credit of Rs. 4,115/- availed on the basis of photocopies of invoices. The appellant claimed that original invoices were submitted to the Range Office, supported by a letter dated 11.03.2014 bearing the Department's receipt stamp dated 12.03.2014.

The adjudicating authority rejected this claim on grounds that the letter was not acknowledged and the signature was not identifiable. The Tribunal, however, noted that once evidence of submission of original invoices before the jurisdictional officer is produced, it cannot be rejected without proof of forgery or fabrication.

Accordingly, the Tribunal accepted the appellant's contention that original invoices were submitted and held that credit availed on photocopies cannot be disallowed if originals were duly submitted and acknowledged.

(iv) Invocation of Extended Period of Limitation under Proviso to Section 73(1)

The Department invoked the extended period of limitation on the ground that the irregularity in credit reversal was detected only during audit and that the appellant had suppressed facts. The appellant argued that there was no finding of fraud or suppression and that extended limitation cannot be invoked merely because an audit was conducted. They relied on several decisions holding that extended period applies only in cases of fraud, willful misstatement or suppression of facts.

The Tribunal examined the audit process in detail, noting that the Department's audit is a comprehensive, multi-step procedure involving profiling, desk review, audit planning, physical verification of documents, and discussion with the assessee. The appellant's records were audited over several days in 2012, and returns were regularly filed thereafter.

The Tribunal held that since the appellant's records were audited and no irregularities were found at that time, the invocation of the extended period was not justified. The extended period cannot be invoked merely because the irregularity was discovered during audit, absent any evidence of suppression or fraud.

Significant Holdings:

On the first issue, the Tribunal held:

"Once the appellant have reversed proportionate credit on common input service attributable to the exempted service, along with interest, it restores the position of cenvat credit not having been availed at all, and the demand for 5%/6% of the value of exempted services cannot be sustained."

This principle was supported by the Supreme Court's decision in Chandrapur Magnet Wires P. Ltd. and various Tribunal precedents, establishing that reversal of credit attributable to exempted services amounts to non-availment of credit and precludes additional demand.

On the second issue, the Tribunal emphasized the sanctity of CA certificates as expert evidence:

"It is well settled principle that CA Certificate cannot be rejected unless it is evidenced that the same is fake or forged. Consequently, we hold that the CA Certificates submitted are acceptable to establish that no credit was availed on common input services for the period October, 2012 to March 2015."

Regarding the third issue, the Tribunal held that submission of original invoices to the Department, evidenced by an acknowledged letter, validates the credit claimed and disallows rejection on the basis of photocopies alone.

On the fourth issue, the Tribunal observed:

"Once all the statutory records of the appellant has been audited and the appellant has filed this returns regularly, the Department cannot invoke the extended period."

This holding aligns with the principle that extended limitation applies only in cases of fraud or suppression and not merely because an audit reveals irregularities.

In conclusion, the Tribunal set aside the impugned order confirming the demand and allowed the appeal. The core principles established include the sufficiency of proportionate credit reversal under Rule 6(3), the acceptance of CA certificates as valid proof of non-availment of credit, the necessity of original invoices for credit claims, and the limited scope for invoking extended limitation period under Section 73(1) absent fraud or suppression.

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