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TMI Blog2017 (1) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... So long as the primary and essential requirements of the procedural Rule have been satisfied, benefit should not be denied on insubstantial grounds. In fact, even the said Rule 9, lays down that minor inadequacies in the document on which credit is availed should be overlooked, in the Proviso to sub-rule (2) thereof. The availment of Cenvat credit based on the Cargo Sales Report prepared from the AWBs, cannot be denied to the appellant. By implication, utilization of such availed credit to discharge their service tax liability cannot also be held as irregular - Appeal allowed - decided in favor of appellant. - ST/263/2011 & 27587/2013 - A/30623-30624/2016 - Dated:- 5-8-2016 - Ms. Sulekha Beevi C.S., Member (J) and Shri Madhu Mohan Damodhar, Member (T) Shri S.S. Gupta and Archit Aggarwal, CAs, for the Appellant. Shri M.K. Mall, Asst. Commissioner (AR), for the Respondent. ORDER [Order per : Madhu Mohan Damodhar, Member (T)]. - The common facts of these two appeals are that the appellants were rendering taxable services under the categories of Courier Services and Business Auxiliary Services. During the course of verification of records, it appeared to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount as charged in the Air Way Bill (AWB) issued on behalf of the airlines. On the basis of various bookings done, the appellant prepares fortnightly Cargo Sales Report (CSR) in respect of each airline. CSR is a summary of AWBs, i.e., invoices raised by the airlines. The said cargo sales report shows the total amount of freight charges plus other charges which are due to the carrier. The cargo sales report also reflects the commission payable to the appellant for booking of the cargo. The commission payable to the appellant is deducted from the gross amount payable to the airlines. It is evident from the cargo sales report that the service tax has been paid to the various airlines on the gross freight remitted by the appellant. Along with the CSR, the appellant also raises the invoice towards its commission of 5% on the freight charges plus applicable service tax on the same. It will thus be evident from the above that the service provided by the appellant is of booking cargo and the commission of 5% of freight amount is charged to the airlines for the said services. As per Section 67 of the Act, value of taxable service is the gross amount charged for the taxable services rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the goods/documents and not the appellant. Even if the demand is upheld, it cannot be both on credit availed and utilized. 4. On behalf of the department, Learned AR Shri S.K. Mall, opposed the appeal, reiterated the findings of the impugned orders and submitted that the CSR is not a specified document for availing input tax credit. 5. Heard both sides and have also gone through the facts and records of the case. 6. The crux of the issue hinges on the question as to whether availment of credit on the document called Cargo Sales Report is in order or otherwise. 7. Admittedly, the said document called Cargo Sales Report is not specifically included in the list of documents on which Cenvat credit can be taken, inter alia, by provider of output service envisaged in Rule 9 of the Cenvat Credit Rules, 2004. It is not in dispute that the said Cargo Sales Report is only a summarization of Air Way Bills (AWB) issued by the appellants as agents of airlines towards booking of cargo. It is also not in dispute that the said AWBs indicate, inter alia, details like AWB No. (Invoice No.), Service Tax Registration No. of the concerned airline, name of service provider airline, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e account of the receiver, he may allow the CENVAT credit. 8. In arriving at this conclusion, we also draw sustenance from judicial decisions on similar issue, which are pari materia applicable to the facts of this case. 9. In Temple Packaging Pvt. Ltd. v. Commr. C. Ex., Cus. S.T. [2015 (323) E.L.T. 597 (Tri. - Ahmd.)], Tribunal held as follows : 11. The Commissioner (Appeals) observed that the Challan is not a document for the purpose of availment of the Cenvat credit. It is also observed that the appellant could have taken the credit in the Cenvat account on the basis of Bill of Entry. It is revealed from the record that the appellant paid the duty by challan on the basis of the Bill of Entry generated through EDI on 13-3-2006. It is observed that the appellant has shown the reference of the Challan in their Cenvat account. In my considered view, the appellant could have mentioned the reference of Bill of Entry number in their Cenvat account. The appellant is also eligible to avail credit on the basis of Challan under Rule 9 of the Cenvat Credit Rules, 2004 as held by the Tribunal in the case of Essar Oil Ltd. (supra). It is held that word Challan and any other simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, proceedings were initiated against the appellants by way of show cause notice dated 26-6-2007 for the credit availed by the assessee during April, 2004 to February, 2006. The said show cause notice culminated into an order passed by the Assistant Commissioner confirming demand of ₹ 1,12,562/- by rejecting the Modvat credit so availed by them and imposing penalty of identical amount under Rule 15 of the Cenvat Credit Rules. On appeal against the above order, the same was confirmed by Commissioner (Appeals). Hence the present appeal. 3. After hearing both the sides represented by Shri Vikrant Kakaria, ld. Advocate and Shri K.P. Singh, ld. DR, I find that the sole objection of the Revenue is that the goods stand returned by the ordnance factory under the cover of Nominal Issue Vouchers, which is an invalid document for availment of credit. Lower authorities have also considered the assessee s plea that along with the said vouchers on their own invoices under the cover of which the goods were originally cleared have also been returned but have not accepted the same on the ground that the goods stand returned after a lapse of three to four years. The appellant s plea on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority has gone into the issue in depth and has decided in favour of the appellant; the relevant portions of the order are reproduced below : The crux of the issue raised in the show cause notice is that the assessee is taking credit based on the Cargo Sales Report, which as per the notice is not the valid document as per Rule 9(1) of the Cenvat Credit Rules, 2004. I have gone through various Cargo Sales Reports and connected Air Way Bills. I find that, in fact, they are taking credit based on the AWBs, as the CSR is only a fortnightly summary of AWBs. They are making a consolidated entry for each of the CSR in the Cenvat ledger and not individual entries AWB wise. However, I opine, it does not mean that they are taking credit based on CSR, because only a single entry is passed in the Cenvat ledger (for one CSR) instead of multiple entries AWB wise. In view of the above background, is it correct on the part of the assessee to take credit of service tax charged on the AWBs (whose summary is given in the CSR) and utilise the same for payment of service tax liability? The Department has alleged in the show cause notices that the CSR, or for that matter the AWB ..... X X X X Extracts X X X X X X X X Extracts X X X X
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