2018 (7) TMI 22 - AT - Service Tax

CENVAT credit - payment of Service Tax under reverse charge mechanism - Rule 3 of CENVAT Credit Rules, 2004 read with Rule 9(c) and Rule 2(f) of the Place of Provision of Service Rules, 2014 - Held that - To give a finding as to whether the issue involves in the present litigation is a service given by intermediary outside the taxable limit is not within the jurisdiction of this Single Bench but, Service Tax paid on mistaken belief that the same was payable and credit availed on bona fide belief would not cause any loss of the Revenue in making adjustment of such tax paid against demand of Service Tax made for the same period. In the case of BAJAJ ALLIANZ GENERAL INSURANCE CO LTD VERSUS COMMISSIONER OF CENTRAL EXCISE 2014 (8) TMI 787 - CESTAT MUMBAI , it was held that Service Tax for service received from non-resident service provider is not required to be paid by the appellant and in a revenue neutral situation, since the same was mistakenly paid and credit availed on bona fide belief that such credit was available, can be adjusted against tax demand. Appeal allowed.

Summary

Issues Involved:
Challenge to disallowance of CENVAT Credit on payment of Service Tax under reverse charge mechanism.

Detailed Analysis:

1. Disallowance of CENVAT Credit:
The appellant, a manufacturing company, challenged the disallowance of CENVAT Credit by the Commissioner (Appeals) and Assistant Commissioner of Central Excise. The disallowance was based on the observation that the appellant had availed CENVAT Credit in contravention of Rule 3 of CENVAT Credit Rules, 2004 and Rule 9(c) and Rule 2(f) of the Place of Provision of Service Rules, 2014. The original adjudicating authority found that the appellant erroneously availed CENVAT Credit and disallowed it, imposing a Service Tax demand of ?9,09,758 along with an equal penalty. The Commissioner (Appeals) upheld this decision, leading to the present appeal.

2. Arguments by Appellant:
During the appeal, the appellant's counsel argued that the service availed by the company did not qualify as intermediary service, and thus, the place of provision of service should be deemed to be within India. It was contended that the foreign service provider did not facilitate the sale of goods but only provided support services. The appellant also claimed that the foreign service provider's role in procuring orders constituted an input service for manufacturing dutiable products, making the credit admissible. Additionally, it was argued that even if the credit was inadmissible, it should be treated as a refund of incorrectly received tax, leading to a revenue-neutral situation.

3. Respondent's Objections:
The respondent department objected to the appeal, stating that the Commissioner (Appeals) had correctly assessed the documents and evidence, requiring no interference. It was argued that the bills raised by the foreign service provider indicated intermediary services falling under Rule 9(c) of the Place of Provision of Service Rules. The respondent also contended that incorrectly paid Service Tax could only be refunded and not adjusted through CENVAT Credit.

4. Tribunal's Decision:
After hearing both sides and examining the case records, the Tribunal found that the issue of whether the service provided was by an intermediary outside the taxable territory was not within its jurisdiction. However, it noted that the payment of Service Tax and availing of credit were done on a mistaken belief. Referring to various precedents, the Tribunal concluded that the Service Tax paid in error could be adjusted against the demand for the same period. Relying on past decisions, the Tribunal allowed the appeal, setting aside the demand for Service Tax and penalty imposed, thereby overturning the orders of the lower authorities.

In conclusion, the Tribunal's judgment allowed the appeal, emphasizing the adjustment of erroneously paid Service Tax against the demand and penalty, based on the appellant's bona fide belief in availing the CENVAT Credit.