9911796707
TMI Blog2017 (12) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... is only to "the name and address of the person receiving the taxable service" and there is no requirement that the name and registered address of the person receiving the taxable service are appeared on the invoice for taking input service credit and this has been repeatedly laid down by the various CESTAT Tribunals - Admittedly, against the order of the Commissioner dated 30.11.2015 no appeal has been preferred by the Department, therefore, in similar set of fact, the denial of the CENVAT Credit is appears to be prima facie wrong which requires consideration by the CESTAT. CENVAT credit - invoice containing old name of company - invoice issued prior to registration - Held that: - The aforesaid two issue involving a dispute and approximate denial of CENVAT Credit of ₹ 89.10 lakhs + 98.19 lakhs total sum of ₹ 187.29 lakhs (approximately) is yet to be decided by the CESTAT for which we refuse to accept the claim of the petitioner. Pre-deposit - Section 3F of the Central Excise Act, 1944 - Held that: - petitioner be dispensed with the condition of pre-deposit of 7.5% for entertainment of the appeal by the appellate Tribunal with respect of issue of non-registered p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be inadmissible is ₹ 18.35 crores. (b) Invoices for the period 2011-12 to 2012-13 contain the erstwhile name of the petitioner prior to its merger on 02.12.2011. Credit held to be inadmissible is ₹ 89.10 lakhs. (c) After merger on 02.12.2011, the petitioner was not registered for a period of 2 months from January 2012 to March 2012 with the Service Tax Department, no credit will be eligible for the input/input services availed during the said period. Credit held to be inadmissible is ₹ 98.19 lakhs. 6. With regard to the above issue/point no.(a), the petitioner has submitted that admittedly there are two premises out of which the premises at Sector 58, NOIDA is unregistered and other premises at Sector 16-A is registered premises. In its reply, the petitioner has submitted that the petitioner's company is carrying out its call centre service from Sector 58 premises. However, all the belongings and invoices have been done from the registered premises situated at Sector 16 A, NOIDA. It is the case of the petitioner that since the services were rendered from unregistered premises, the invoices so raised on the petitioner by its vendors were on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Rules is reproduced hereunder: RULE 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan.-(1) Every person providing taxable service shall, not later than fourteen days form the date of completion of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier,] issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorised by him [in respect of such taxable service provided or to be provided and such invoice, bill or, as the case may be, challan 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. 9. The counsel for the petitioner, therefore, has submitted that in view of the aforesaid relevant rules, it is evident that the documents on the basis of which the credit can be availed unless requires following namely: (a) name, address and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and address of the provider of taxable service. 21.11 The issue is also settled by several judicial pronouncements. The Hon'ble Tribunal in the case of Manipal Advertising Services Pvt. Ltd v. Commissioner of Ccentral Excise, Mangalore 2010 (10) STR 506 (Tri-Bang), allowed the credit availed, even though the address on the invoice was not the same as the registered address. 13. Learned counsel for the petitioner has informed the court that the Revenue has not filed any appeal against the order dated 30.11.2015 passed by the Commissioner by which the Commissioner has held that under the provision, there is no requirement for the registered premises of the recipients to be mentioned on the invoices. This fact has been accepted by Sri Ashok Singh, learned counsel representing the respondents. 14. According to the petitioner, since this issue is squarely covered in favour of the petitioner and there is no requirement for registered premises of the recipients under the law which is to be mentioned on the invoice, the proceedings began by the Commissioner are invalid as such without jurisdiction and contrary to the provision of law. 15. Counsel for the petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, has directed to recover the aforesaid amount. 20. Learned counsel for the petitioner has relied upon several decisions and submitted that this issue is clearly covered in favour of the petitioner's company, therefore, he has submitted that the Commissioner has not justified in taking a different view and disallowing the CENVAT Credit for which petitioner's company is entitled. 21. Counsel for the petitioner has submitted that this Court in the case of Ganesh Yadav vs. Union of India and others 2015(320) ELT 711 (Allahabad) has held as follows: 9...... Above all, as the Supreme Court held in Shyam Kishore (supra), the High Court under Article 226 of the Constitution is vested with the jurisdiction in an appropriate case to dispense with the requirement of pre-deposit and the power of the Court under Article 226 is not taken away. This was also held by the Supreme Court In P. Laxmi Devi(supra) in which the Supreme Court observed that recourse to the writ jurisdiction would bot be ousted in an appropriate case. Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration to the Superintendent of Central Excise. (2) The Central Government may, by notification in the Official Gazette, specify such other person or class of persons, who shall make an application for registration within such time and in such manner and in such form as may be prescribed. 27. According to the counsel for the Revenue, Section 69 of the Finance Act, 1994 would go to show evidently make it clear that every person liable to pay the service tax has got to make himself registered. Further for the purposes of the controversy in question Rule 4 of the Service Tax Rules is very relevant wherein the provision for Registration has been provided and I this context attention is invited to Rule 4[(1A) sub clause (2)] which provides for a centralised billing system or centralized accounting system where such centralised billing or centralised accounting systems are located in one or more premises. 28. Learned counsel for the Revenue has admitted that so far as the issue No.(a) is concerned, the department has not challenged the order of the Commissioner dated 30.11.2015 as admittedly no appeal has been filed. He has fairly accepted that so far as issue no.(a) is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty demand in pursuance of the order dated 16.08.2017 passed by the adjudicating authority. In this regard, it is relevant to mention here that enactment of relevant provision in Section 35 F of the Central Excise Act, 1944 (hereinafter referred as 'The Act') which deals with regard to deposit, pending bill of duty demand or penalty levy. 33. In this background, it is relevant to mention here that the Parliament while amending the provisions of Section 35F of the Act has required the payment of 7.5 percent of the duty in case the duty and penalty are in dispute or the penalty where such penalty is in dispute. In the case of an appeal to the Tribunal against an order passed by the Commissioner (Appeals), the requirement of deposit is 10% of the duty or as the case may be, the duty or penalty or of the penalty where the penalty is in dispute. The first proviso restricts the amount to be deposited to a maximum of ₹ 10 crores. Prior to the amendment, the Commissioner (Appeals) or the Appellate Tribunal were permitted to dispense with such deposit in a case of undue hardship subject to such conditions as may be imposed so as to safeguard the interest of the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of the Commissioner dated 30.11.2015 no appeal has been preferred by the Department, therefore, in similar set of fact, the denial of the CENVAT Credit is appears to be prima facie wrong which requires consideration by the CESTAT. 36. In view of the aforesaid reason, we accept the prayer of the petitioner in part that petitioner be dispensed with the condition of pre-deposit of 7.5% for entertainment of the appeal by the appellate Tribunal with respect of issue no.(a). 37. However, on the facts and circumstances of the case, with regard to other issue namely the issue no.(b) on the ground that in the invoice mentioned the erstwhile name of the company namely M/s Essel Business Processes Ltd./ Integrated Subscriber Management Services Ltd. instead of mentioning the name of the present writ petitioner's company after the merger pursuant to the order of Bombay High Court dated 02.12.2011 namely Cyquator Media Services Pvt. Ltd and the other issue No.(c) on the ground that the petitioner's company was registered with effect from March, 2012 only and the invoice issued prior to the registration from January, 2012 to March, 2012 were ineligible for availi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
