2018 (5) TMI 564 - AT - Service Tax

CENVAT credit - Input Service Distributor (ISD) - various input services - Held that - The demand has been confirmed against the ISD and as per the settled position of law, recovery can only be effected from the manufacturing units or the output service provider and cannot be made from the Input Service Distributor - the CENVAT credit cannot recovered from the appellant who is an Input Service Distributor. Time limitation - suppression of facts - Held that - the appellants have not suppressed any material fact from the Department with intention to evade the duty - period involved in the present case is from December 2008 to December 2011 and the show-cause notice was issued on 16.1.2014, the entire demand in the present case is also barred by limitation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Wrong availing of CENVAT credit on input services
- Recovery of CENVAT credit from an Input Service Distributor (ISD)
- Applicability of limitation period for the demand

Analysis:
1. Wrong Availing of CENVAT Credit on Input Services:
The appellant, engaged in manufacturing pharmaceutical products, distributed service tax credit as an Input Service Distributor (ISD) to its manufacturing units. The department observed wrongful availing of CENVAT credit on input services for the period December 2008 to December 2011. Show-cause notices were issued, and the Additional Commissioner confirmed the demand, interest, and imposed penalties. The appellant contested the order, arguing that the denied credit falls within the definition of 'input service' as per CCR, 2004. They also asserted a direct nexus between certain services and their manufacturing activity. The appellant cited judicial precedents to support their claim, challenging the denial based on specific notifications. The counsel further contended that recovery cannot be made from an ISD, relying on relevant case laws.

2. Recovery of CENVAT Credit from an Input Service Distributor (ISD):
The appellant argued that recovery of wrongly taken CENVAT credit cannot be made from an ISD, as per Rule 14 of CCR. Citing precedent judgments, the appellant emphasized that recovery should be from the manufacturer or the provider of output services, not the ISD. The Tribunal concurred, referring to established legal positions and previous decisions, including the case of Mahindra and Mahindra Ltd. The Division Bench's ruling supported the appellant's contention, leading to the conclusion that the demand against the ISD was not sustainable in law.

3. Applicability of Limitation Period for the Demand:
The appellant asserted that the demand for the period December 2008 to December 2011 was beyond the normal one-year limitation period. They argued against the invocation of an extended limitation period, stating that no material facts were suppressed to evade duty. Relying on legal principles and past judgments, the appellant contended that the demand was barred by limitation. The Tribunal agreed, finding no suppression of facts and concluding that the entire demand was indeed time-barred.

In the final judgment, the Tribunal allowed both appeals of the appellant, setting aside the impugned order. The recovery of CENVAT credit from the ISD was deemed unsustainable, and the demand was held to be barred by limitation. Consequently, the Tribunal did not delve into the eligibility of CENVAT credit on various input services, providing relief to the appellant based on the issues of recovery and limitation.