2015 (11) TMI 338 - AT - Service Tax

Rectification of mistake - CENVAT Credit - Renting of property - Jurisdiction to raise demand - Held that - Department is not suppose to know each and every declaration made outside the Central Excise law. We also note that the Service Tax Registration Certificate, Service Tax Returns and Audit Report did not reveal that Cenvat Credit is being utilized to pay the service tax on the renting of property located at Mumbai. This issue came up in the audit report for the year 2013-2013 issued on 17.1.2013 and the show cause notice was issued on 18.10.2013. During the audit 100% of the invoices may not be seen by audit. The debit invoices do not indicate that the service tax paid from the input service tax credit. Therefore there is no basis for setting aside the demand on limitation. - service tax demand was confirmed on account of wrong utilization of the input service tax credit. Therefore there is no mistake in the order - if the appellant had not paid the service tax out of the input service tax credit, they would have had to pay the tax by cash. To this extent the benefit of interest has accrued to them, therefore interest is payable as held in the order - no mistake apparent on record in our order - Rectification denied.

Summary

Issues Involved:
1. Limitation on service tax demand based on submissions.
2. Jurisdiction of the Commissioner of Central Excise.
3. Dispute over realization of Cenvat Credit and interest demand.
4. Request for setting aside service tax demand and interest.

Analysis:

1. Limitation on Service Tax Demand:
The Tribunal noted that the department cannot be expected to be aware of all declarations made outside Central Excise law. Despite submissions of Service Tax Registration Certificate, Returns, and Audit Reports, it was found that the utilization of Cenvat Credit for paying service tax on property rent in Mumbai was not evident. The audit report highlighted this issue in 2013, leading to a show cause notice in the same year. The absence of clear documentation supporting the payment of service tax from input service tax credit and the lack of evidence in invoices led to the dismissal of the demand on limitation.

2. Jurisdiction of the Commissioner:
The Tribunal upheld that the service tax demand was justified due to the incorrect utilization of input service tax credit. The order clarified that the Commissioner of Central Excise, Pune, had the authority to raise the service tax demand on property rent in Mumbai, emphasizing that no error existed in this regard.

3. Dispute over Cenvat Credit and Interest Demand:
Regarding the dispute over the realization of Cenvat Credit and the demand for interest, the Tribunal reasoned that if the appellant had not used the input service tax credit to pay the service tax, they would have been required to make the payment in cash. As a result, the appellant benefited from the interest accrued on the credit, leading to the conclusion that interest was indeed payable as per the order. The Tribunal found no evident error in its decision on this matter.

4. Request for Setting Aside Demand:
The appellant's plea to set aside the service tax demand and interest was dismissed by the Tribunal, emphasizing that no substantial grounds existed to warrant a review or modification of the original order. The Tribunal's decision was finalized on 20.10.2015, thereby concluding the matter.

In summary, the Tribunal's judgment addressed the issues of limitation, jurisdiction, Cenvat Credit realization, and interest demand comprehensively, ultimately upholding the service tax demand and interest payment based on the utilization of input service tax credit.