2022 (9) TMI 1015 - HC - Central Excise

CENVAT Credit - duty paying documents - credit denied on the ground that any of the documents mentioned in sub-rule (1) of Rule 9 of the CCR, 2004 does not contain all the particulars required to be contained therein under these rules - correctness of overlooking the mandatory provisions of sub-rule (1) of Rule 9 of the CCR, 2004 - recipient of the service, shipper of the goods/documents and not the appellant? - Appellant is Agent or not - HELD THAT - It is trite law that the show cause notice is the foundation in the matter of levy and recovery of duty penalty and interest and since the grounds on which the appeal was preferred before the Tribunal did not find any basis in the show cause-cum-demand notice, the appeal on that basis could not have been entertained or allowed. Appeal dismissed.

Summary

Issues:
1. Interpretation of Cenvat credit rules regarding document requirements
2. Compliance with mandatory provisions of Cenvat credit rules
3. Identification of service tax payer in the airline industry
4. Determination of appellant's role as an agent

Issue 1: Interpretation of Cenvat credit rules regarding document requirements
The appeal under Section 35G of the Central Excise Act, 1944 challenged the Customs, Excise & Service Tax Appellate Tribunal's order regarding the denial of Cenvat credit due to improper documents. The key question was whether the documents contained all required particulars under the rules. The adjudicating authority initially held in favor of the respondent, stating that Air Way Bills could serve as valid documents for Cenvat credit under Rule 9(1) of the Cenvat Credit Rules, 2004. The order highlighted the essential elements that Air Way Bills needed to contain to be considered valid for Cenvat credit.

Issue 2: Compliance with mandatory provisions of Cenvat credit rules
The Tribunal dismissed the appeal by the revenue challenging the adjudicating authority's decision, arguing that the activity of the assessee did not qualify as an 'output service' under the Cenvat Credit Rules, 2004. The Tribunal's decision was based on the grounds raised in the show cause-cum-demand notice, emphasizing that the appeal could not be entertained if not grounded in the notice. The High Court concurred with the Tribunal's decision, stating that the appeal lacked a basis in the show cause notice, which is fundamental in matters of duty levy and recovery.

Issue 3: Identification of service tax payer in the airline industry
The appeal also raised concerns about the payment of service tax by airlines and the identification of the service recipient. The Tribunal's decision was upheld by the High Court, emphasizing the importance of the grounds raised in the show cause notice for appeal consideration. The Court found no merit in challenging the Tribunal's decision, ultimately dismissing the central excise appeal.

Issue 4: Determination of appellant's role as an agent
The question of the appellant's role as an agent was raised but not extensively discussed in the judgment. The focus remained on the interpretation of Cenvat credit rules, compliance with mandatory provisions, and the identification of the service tax payer in the airline industry. The High Court's decision to dismiss the appeal was primarily based on procedural grounds and the lack of a valid basis in the show cause notice for the appeal.