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TMI Blog2016 (1) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ces received - Held that:- The words “invoice”, “bill” and “challan” have not been defined in the Service Tax Rules, 1994 but the details contained in such documents have been prescribed in Rule 4A(1) of these rules. Further provisos under Rule 4A(1) any document, whether or not serially numbered with respect to banking services, GTA Services, and Aircraft Operator Services; has been prescribed. From a collective reading of these provisions we are of the opinion that if details prescribed in Rule 4A(1) of the Service Tax Rules, 1994 are available in a document then the same can be considered as an invoice, bill or challan and will be a proper document for availing Cenvat credit under CCR. - Credit allowed. Extended period of limitation - Held that:- an assessee of the stature of the present appellant, having the best legal advise at their command, can not be considered to be ignorant of law. No where in the statutory returns/intimations, submitted to the department and brought on record, that Cenvat Credit of capital goods and services installed/availed in the state of Jammu & Kashmir has been depicted. Appellant never approached the department at any stage that any ambiguity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand for the period 01.04.2007 to 31.03.2011 (amounting to ₹ 36,38,996/-) is time barred as the show cause notice is issued on 19.01.2012 and there is no willful suppression or misstatement on the part of the appellant. (ii) That the capital goods installed in J K state are used for providing taxable as well as exempted services when a subscriber of Bhubaneswar circle of the Appellant goes to the state of J K and avails roaming services. That Bhubaneswar circle of the Appellant collects roaming charges from such subscriber and discharges service tax on the same. Therefore, the capital goods installed in the state of Jammu Kashmir have not been used by the Appellant for exclusively providing exempted services, hence, Rule 6(4) is not violated. (iii) That since the input services were used for providing taxable services as well as exempted services provided in J K, therefore, upto 31.03.2011 (for credit availed ₹ 3,14,55,065/-) the credit taken will fall under Rule 6(5) and hence not hit by the bar of Rule 6(1) of the CCR. (iv) That other credits are denied on the basis of improper documents which is not correct as all the requisite particulars as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ST-3 returns filed by the appellant or in the invoices charged to the customers. That centralized registration for seven branch offices/premises, from where services are provided, are only for making accounting and service tax payment easy and does not make all the seven premises as one service provider. It was his case that appellant has mis-represented by including the name of their Bahu Plaza Complex, Jammu, as no taxable service is provided by the appellant from this premises. That once no taxable service is provided in the state of Jammu Kashmir then no Cenvat Credit to capital goods installed in the state of Jammu Kashmir is admissible as per CCR. Learned AR made the Bench go through Section 64(1) of the Finance act, 1994, Rule 4(2) of Service Tax Rule, 1994 and Rule 1(2), Rule 2(e), 6(1) and 6(4) of the CCR to argue that Cenvat Credit with respect to capital goods and inputs services was not admissible and has been correctly denied to the appellant by the Adjudicating authority. Regarding invocation of extended period it was his case that nowhere in the returns filed with the department by the appellant it was specified that credit of capital goods and inputs ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 1994, where a person has centralized billing/accounting system then centralized registration can be obtained. Obtaining centralized registration of Bhubaneswar does not mean that service provider (branch office) in Jammu Kashmir state starts providing services from Bhubaneswar. Further branch office in Jammu Kashmir was not required to be included by the appellant in the centralized registration from where no taxable service is provided by virtue of Section 64(1) of the Finance Act, 1994. We are not convinced by the argument of the appellant that the capital goods/towers installed in Jammu Kashmir are also used for providing taxable roaming services, because such facility/service has to be deemed to have been provided at Bhubaneswar as per the CBEC clarification relied upon by the appellant. There is nothing on record that any special charge recovered by the appellant from the customers towards the roaming facilities provided in the state of Jammu Kashmir. Roaming charges are the same whether roaming facilities are provided in Jammu Kashmir or elsewhere in India as nothing contrary to that aspect has been brought on record by the appellant. In view of the above all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an shall be serially numbered and shall contain the following, namely:- (i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) description, classification and value of taxable service provided or to be provided and (iv) the service tax payable thereon: 7.1 The words invoice , bill and challan have not been defined in the Service Tax Rules, 1994 but the details contained in such documents have been prescribed in Rule 4A(1) of these rules. Further provisos under Rule 4A(1) any document, whether or not serially numbered with respect to banking services, GTA Services, and Aircraft Operator Services; has been prescribed. From a collective reading of these provisions we are of the opinion that if details prescribed in Rule 4A(1) of the Service Tax Rules, 1994 are available in a document then the same can be considered as an invoice, bill or challan and will be a proper document for availing Cenvat credit under CCR. Our view is fortified by the case law of CESTAT, Ahmedabad CCE Cus, Daman vs. Jalaram Plastic Pack (supra) where debit notes issued by the service provider were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 15 of the CCR, 04 read with Section 78 of the Act. 8.1 On the other hand appellant has argued that extended period of 5 years, under proviso to Section 73(1) of the Finance Act, 1994, will be applicable only if there is willful act or mis-statement or deliberate withholding of information as per the case laws of Padmini Products Limited v. CCE [1989 (43) ELT 195(SC)], Anand Nishikawa Co.Ltd. vs. CCE [2005(188)ELT 149(SC)] decided by Apex Court. It is appellants case that they have correctly taken Cenvat Credit as per CCR and has not misstated or suppressed any information from the department with an intention to take wrong credit. It is also their case that in view of the explanation given by the appellant there was a bona fide belief on the part of the appellant that the credit was admissible and the penalty can be imposed as per the following case laws: (i) Flyingman Air Courier (P) Ltd. vs. CCE, Jaipur [2004(170) ELT 417(T)] (ii) CCE v. Gamma Consultancy (P) Ltd. [2006(4)STR 591(T)] (iii) Hindustan Steel Ltd. v. The state of Orissa [1969 (2) SCC 627(SC)] Appellant also pleaded that as per the provisions contained in Section 80 of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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