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TMI Blog2013 (12) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... and, as such, the Service Tax Rules also do not mention the issue of supplementary invoices when additional service tax is required to be paid due to any reason. In view of this, the term ‘invoice’ mentioned in Clause (f) and (g) of Rule 9 (1) of Cenvat Credit Rules, 2004 has to be treated including supplementary invoice, as during the period of dispute, with regard to service tax payment, the Rule 9 (1) did not make any distinction between ‘invoice’ and ‘supplementary invoice’. Restriction during the period prior to 1/4/11 was only in respect of supply of inputs and capital goods as provided in clause (b) of Rule 9 (1) and such restriction in supply of services was introduced only w.e.f. 1/4/11 by inserting clause (bb) to Rule 9 (1). Since Rule 9 (1) (bb) does not has retrospective effect, the provisions of the same cannot be applied during the period prior to 1/4/11. I find that same view has been taken by the Division Bench in the cases of M/s JSW Steel Ltd. Salem Works vs. CCE, Salem reported in [2008 (9) TMI 74 - CESTAT, CHENNAI], Chaphekar Engg. Pvt. Ltd. vs. CCE, Pune-I [2013 (11) TMI 1362 - CESTAT MUMBAI] and Secure Meters Ltd. vs. CCE, Jaipur -II reported in [2010 (1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules according to which when the short payment duty paid on inputs/capital goods, paid under supplementary invoices, was due to wilful misstatement, suppression of facts etc. on the part of the supplier, the recipient of such inputs/capital goods would not be entitled to take Cenvat credit on the basis of such supplementary invoices. Accordingly, by two separate orders passed by Assistant Commissioner he rejected the cash refund of the above amounts of Rs. 9,63,790/- and Rs. 3,94,070/- on the ground that Cenvat credit of these amounts was not admissible. On appeals being filed against these orders to Commissioner (Appeals), the Commissioner (Appeals) by common order-in-appeal No. 261-262/CE/APPL/NOIDA/2010 dated 20/08/2010 upheld the Assistant Commissioner s orders against which these two appeals have been filed. 2. Heard both the sides. 3. Ms. Nupur Maheshwari, Advocate, the learned Counsel for the appellant, pleaded that the dispute pertains to June 2008 and August 2008, that during that period in terms of the provisions of Rule 9 (1) (b) regarding availability of Cenvat credit on the basis of supplementary invoices issued by the supplier of inputs/capital goods, there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period prior to 1/4/11 it is clear that the legislature made a distinction between the invoice and supplementary invoice and in respect of supplementary invoices, the Cenvat credit was disallowed when the additional tax paid under supplementary invoice was that which had been short paid due to fraud, wilful misstatement, suppression of fact etc. on the part of the supplier of the inputs or capital goods (b) From the provisions of Rule 9 (1) (b), it is clear that the intention of the legislature from the very beginning was that Cenvat credit should not be allowed of the additional tax paid under supplementary of invoices issued by the supplier of inputs, capital goods or services where there was deliberate evasion of tax by that supplier. Therefore, even during period prior to 1/4/11, if there was deliberate of short payment of service tax by a service provider, the Cenvat credit of service tax paid under supplementary invoices would not be admissible to the service recipient who had used those services in the manufacture of excisable goods. (c) Though clause (bb) containing provisions analogous to clause (b) of Rule 9 (1) in respect of service was introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 from a factory or from depot or premises of the consignment agent of the said manufacturer or importer or from any other premises, from where the goods are sold, shall be the valid document for Cenvat credit except in the cases where the additional amount of tax paid under supplementary invoice was that which had become recoverable from the manufacturer or importer on account of any non-levy or short levy by the reason of fraud, collusion, misstatement or suppression of facts etc. on the part of the manufacture or importer. This provision was only in respect of supply of inputs and capital goods and, as such, in respect of supply of input services there was no such provision. Such a provision was introduced only w.e.f. 1/4/11 by inserting clause (bb) in Rule 9 (1). The point of dispute is as to whether during the period prior to 1/4/11, which is the period of dispute in this case, the Cenvat credit can be allowed of the additional amount of service tax paid by a service provider under supplementary invoices when the additional amount paid was that which had been short paid on account of deliberate evasion. 8. Coming to the first question as to whether during the period of dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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