2019 (1) TMI 722 - AT - Service Tax

CENVAT Credit - trading activities undertaken by the corporate office - consultancy charges and insurance charges exclusively used for trading activities - input services - Held that - There is nothing in the allegations that show that the appellant (Ericsson India Pvt Ltd, Secunderabad) registered as service tax payer in their Secunderabad office had taken any credit wrongly. They have not rendered any exempted services and were therefore, not required to reverse any CENVAT credit. There is also nothing on record to show that they have availed CENVAT credit in excess of 20% of the service tax paid by them in their office. The allegation in the show cause notice is that the corporate office, which is a separate registrant and also as an ISD (although part of the same corporation) which is registered in Gurgaon (Haryana) had wrongly taken CENVAT credit and distributed it to their branch office in Secunderabad. Therefore, if these allegations are true, the demand, if any, and penalties, if any, is imposable on the corporate office. Demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Correctness of availed input service credit by the appellant.
2. Eligibility of the appellant to take credit on consultancy and insurance charges.
3. Denial of credit on business expenditure by the appellant.
4. Transfer of input service credit by the corporate office exceeding 20% of output service tax liability.
5. Legitimacy of credit distribution by the ISD.
6. Interpretation of Rule 6(3) of the CENVAT Credit Rules, 2004.
7. Applicability of limitation period.
8. Bona fide interpretation of law and imposition of penalties.

Analysis:
1. The appellant, engaged in providing services to telecom operators, faced allegations regarding the correctness of availed input service credit. The show cause notice challenged the credit on input services related to trading by the corporate office, consultancy charges, insurance charges, and business expenditure. The appellant maintained they only provided taxable services, issued bills exclusively for such services, and legitimately took credit based on ISD invoices. The Tribunal found no evidence of wrongful credit availing by the appellant, concluding the demand was unsustainable.

2. Regarding consultancy and insurance charges, the appellant's eligibility to claim credit was questioned. The appellant argued that these charges were not exclusively used for trading activities. The Tribunal observed that the appellant had taken credit based on ISD invoices received from their corporate office, finding no grounds to hold them responsible for ineligibility. Consequently, the demand and penalties were deemed unsustainable.

3. The denial of credit on business expenditure was also contested. The appellant asserted that they qualified as input services. The Tribunal examined the records and concluded that the appellant had legitimately availed credit based on ISD invoices, dismissing the allegations of ineligibility and upholding the appellant's right to claim the credit.

4. The issue of transfer of input service credit by the corporate office exceeding 20% of the output service tax liability was raised. The Tribunal noted that while the corporate office might be liable for any wrongful credit transfer, the branch office in Secunderabad, being a separate registrant, could not be held accountable for the corporate office's actions. The Tribunal found the demand and penalties unsustainable in this regard.

5. The legitimacy of credit distribution by the ISD was a key point of contention. The Tribunal emphasized that the appellant had acted in accordance with the ISD invoices received from their corporate office, absolving them of any wrongdoing in credit distribution. Consequently, the demand and penalties were deemed unsustainable.

6. The interpretation of Rule 6(3) of the CENVAT Credit Rules, 2004 was crucial. The Tribunal clarified that the appellant had not utilized CENVAT credit in excess of the permissible limit, as alleged in the show cause notice. Citing relevant case law and circulars, the Tribunal found the demand unsustainable and ruled in favor of the appellant.

7. The applicability of the limitation period was raised, with the appellant arguing that the demand was time-barred. The Tribunal considered the relevant provisions and concluded that there was no suppression of facts by the appellant. As all necessary information had been provided in their returns, the demand was held to be unsustainable due to the limitation period.

8. Lastly, the issue of a bona fide interpretation of the law and the imposition of penalties was discussed. The Tribunal found that the appellant had acted in good faith and should not be penalized for a genuine interpretation of the law. Consequently, the appeal was allowed, and the impugned order was set aside, ruling in favor of the appellant.