2019 (8) TMI 325 - AT - Service Tax

Business Auxiliary Service - short payment of service tax - price variation clause - downward revision of work contract - violation of Rule 6(4) of Service Tax Rules, 1994 - adjustment of excess payment of service tax - HELD THAT - The appellants have produced the certificate from the service receiver who has certified that original bills were revised and they have paid the Service Tax on revised invoice. Further, the appellant has also produced the certificate of Chartered Accountant for the revision of invoices of the service receiver and accordingly the reduction in invoice value was due to negotiations and revised invoices were raised - the demand of ₹ 1,40,397/- confirmed is not tenable in law and is set aside. Availment of CENVAT credit of ₹ 48,717/- paid as rent and telephone bills - HELD THAT - In the SCN, it is not disputed that the input services are in relation to rendering output service and hence input service in terms of Rule 2(l) of the CENVAT Credit Rules. Further, the payment made in respect of service received and consumed as service provider and further output services are not exempted from tax and Service Tax is payable on output services therefore there is no dispute with regard to the receipt of services as utilized for output service and as per provision of Rule 4(7) of CENVAT Credit Rules, the appellant has availed the credit of Service Tax on input services which is permitted under Rule 4 (7) of CENVAT Credit Rules therefore denial of credit is set aside. CENVAT Credit on Short payment of Service Tax amounting to ₹ 1,77,839/- for the period 2013-14 - denied on the ground that the invoice produced by the appellant does not provide the details of the recipient of service and the same is not appearing on the face of the invoice - HELD THAT - The Commissioner (Appeals) has not denied the fact that the input services are in relation to rendering output services. Further, the appellants have availed the credit of Service Tax on input services only after the payment made to the service provider. Further, the appellant has also produced Chartered Accountant certificate for proof of availment of CENVAT credit in the input ledger credit and payment made to the service provider. Further, the appellant has recorded the payment in the input credit ledger and bank statements also showing the payment of Service Tax of ₹ 1,77,839/- - the denial of the CENVAT credit only on the ground that the name of service recipient is not mentioned in the invoice is not sustainable in law when all other details which are required as per Rule 9 are present. Extended period of limitation - HELD THAT - The period covered in the SCN is 4/2013 to 3/2015 and the SCN was issued on 30.12.2016 which is clearly beyond the normal period of 18 months and therefore the entire demand raised in the SCN is time barred - further extended period cannot be invoked because the appellant has disclosed all the receipts in the ST-3 Returns and there is no suppression on the part of the appellant to evade the Service Tax. Appeal allowed on merits as well as on limitation.

Summary

Issues:
Violation of Rule 6(4) of Service Tax Rules, 1994; Denial of CENVAT credit; Invocation of extended period for demand; Sustainability of impugned order in law.

Violation of Rule 6(4) of Service Tax Rules, 1994:
The appellant was alleged to have violated Rule 6(4) of Service Tax Rules, 1994 in the Show Cause Notice (SCN). However, the Commissioner (Appeals) applied Rule 6(4A) of Service Tax Rules, 1984, which led to a finding that the appellant could not adjust the excess Service Tax payment. The tribunal referred to a previous judgment and held that if the order goes beyond the scope of the SCN, it should be set aside. The appellant provided certificates from service receivers to support the revision of invoices, showing that the reduction in invoice value was due to negotiations. Consequently, the demand of ?1,40,397 was deemed unsustainable, and the tribunal set it aside.

Denial of CENVAT credit:
Regarding the CENVAT credit of ?48,717 for rent and telephone bills, the tribunal found that these expenses were related to services used for output services. It was noted that the input services were not disputed to be connected to output services, and the denial of credit was set aside. The tribunal emphasized that the denial of credit solely based on the absence of the recipient's name on the invoice was not legally justified when all other required details were present.

Invocation of extended period for demand:
The SCN covered the period from 4/2013 to 3/2015 and was issued on 30.12.2016, beyond the standard 18-month period. The tribunal ruled that the demand raised in the SCN was time-barred as it exceeded the normal limitation period. It was highlighted that the extended period could not be invoked as the appellant had disclosed all receipts in the ST-3 Returns and cooperated during the audit, with no intention to evade Service Tax. Referring to a High Court decision, the tribunal emphasized that the extended period cannot be invoked without a valid basis.

Sustainability of impugned order in law:
After considering submissions and evidence, the tribunal concluded that the impugned order was unsustainable both on merits and limitations. Consequently, the tribunal set aside the order and allowed the appeal of the appellant, granting consequential relief if applicable. The decision was pronounced in Open Court on 06/08/2019.