2018 (1) TMI 309 - AT - Service Tax

CENVAT credit - credit availed before registration - penalty - Held that - immediately after incorporation, the appellant applied for PAN for which the Income Tax department took time to issue PAN to the appellant and without the PAN the appellant could not registered with the department. Therefore, there was no malafide intent of the appellant for non-registration within time - penalty set aside. The issue has also been examined by the Hon ble Karnataka High Court in the case of mPortal India Wireless Solutions Private Limited 2011 (9) TMI 450 - KARNATAKA HIGH COURT , where it was held that for the period prior to registration the appellant is entitled to avail cenvat credit of input services. Appeal allowed - decided in favor of appellant.

Summary

Issues: Denial of cenvat credit before registration, imposition of penalties for inadmissible cenvat credit and non-payment of service tax in time.

Denial of Cenvat Credit Before Registration:
The appellant appealed against an order denying cenvat credit availed before registration and imposing penalties for inadmissible credit and late service tax payment. The appellant, incorporated on 01.04.2013, applied for PAN on 08.04.2013, which was granted on 12.06.2013. Subsequently, service tax registration was obtained on 20.06.2013, but the appellant had already started providing output services and availed input services essential for this purpose. After an audit objection, a show cause notice was issued, denying pre-registration cenvat credit, demanding repayment with interest, and imposing a penalty of ?10,000 under Section 77 of the Finance Act, 1994. The appellant contended that due to delayed PAN issuance, they couldn't register for service tax earlier, asserting entitlement to pre-registration cenvat credit as all services were used for output services. The appellant cited a Karnataka High Court decision supporting their position.

Penalties Imposed:
The appellant argued against penalties under Sections 77 and 78 of the Finance Act, 1994, contending no malafide intent for delayed registration due to PAN issuance delay. The appellant's prompt PAN application post-incorporation indicated no deliberate non-compliance. The Tribunal noted the absence of a statutory provision mandating registration as a prerequisite for cenvat credit, citing the Karnataka High Court's ruling in a similar case. The High Court had clarified that no law required registration for claiming cenvat credit, overturning previous decisions. Consequently, the Tribunal held the appellant correctly availed cenvat credit under Rule 3 of the Cenvat Credit Rules, 2004, setting aside the impugned order and allowing the appeal with consequential relief.

Conclusion:
The Tribunal's judgment favored the appellant, overturning the denial of pre-registration cenvat credit and penalties. The decision emphasized the lack of legal grounds for rejecting cenvat credit based on registration timing, aligning with the Karnataka High Court's precedent. The appellant's compliance efforts post-PAN issuance and the essential nature of input services for output provision supported the Tribunal's ruling, providing a legal basis for the appellant's entitlement to the credit.