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TMI Blog2018 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. CENVAT Credit - duty paying documents - whether CENVAT credit amounting to ₹ 1,24,80,608/- which has also been rejected on additional ground that same was not taken on the basis of prescribed documents as provided under Rule 9 (1) of Cenvat Credit Rules is available to them or not? - Held that:- The document on the strength of which Cenvat credit of ₹ 1,24,80,608/- was taken, are having all the particulars which are relevant for availing the Cenvat credit. The document has all the details such as name, service provider, service recipient, value of service and service tax amount paid - though the document may not be with the name of the prescribed document which are mentioned under Rule 9 (1) of Cenvat Credit Rules, 2004, however, all the particulars which are relevant have mention on it. Even if the document on the strength of which Cenvat credit is taken is not in the prescribed documents under Rule 9 of the Cenvat Credit Rules, 2004, the credit cannot be denied, if it has the necessary details - Since, the document of the appellant has all the relevant particulars as are the requisite under the above-mentioned proviso to Rule 9 (2), the credit cannot be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has accepted the contentions of the appellant that they are entitled for Cenvat credit of the service tax paid by them on the business support services. However, out of the total Cenvat credit of ₹ 4,73,31,151/-, input service credit amounting to ₹ 3,03,35,302/- was held to be not admissible since same was availed in June, 2007 prior to payment of value of services as well as payment of the service tax thereon. It is also mentioned that the appellant paid service tax on these services in the month of August 2007 to October 2007 while credits were taken in the month of June, 2007. The learned Commissioner has held that the appellant has availed the Cenvat credit before payment of the service tax in contravention to Rule 4 (vii) of the Cenvat Credit Rules, 2004 and it has been held by him that the appellant are not entitled to credit of service tax as the service tax was not paid at the time of availing Cenvat credit on the service availed by them. 2. An amount of ₹ 1,24,80,608/- out of the above- mentioned amount of ₹ 3,03,35,302/- has also been found inadmissible to the appellant on an additional ground that same has also been availed on the strength o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hattisgarh) ; (iii) CCE vs. Pepsico India Holdings Pvt. Ltd. 2006 (205) E.L.T. 543 (Tri. Chennai) ; (iv) Twenty First Century Printers Ltd. vs. CCE 2009 (234) E.L.T. 277 (Tri. Ahmd.) ; (v) Gujarat Pipavav Port Ltd. vs. CCE 2009 (14) S.T.R. 53 (Tri. Ahmd.) and (vi) J.K. Sugar Ltd. vs. CCE 2011 (270) E.L.T. 225 (Tri. Del.). 5. The learned Counsel for the appellant has also argued that Cenvat credit cannot be denied to them being pre-mature because of the fact that service tax was paid at the later date by the appellant then availing Cenvat credit. The learned Advocate has placed reliance on following decisions to support his argument :- (i) Gujarat Pipavav Port Ltd. vs. CCE 2009 (14) S.T.R. 53 (Tri. Ahmd.) and (ii) J.K. Sugar Ltd. vs. CCE 2011 (270) E.L.T. 225 (Tri. Del.). 6. Regarding denial of the Cenvat credit of ₹ 1,24,80,608/- out of the above-mentioned amount of ₹ 3,03,35,302/- on an additional ground that same was availed on the strength of a simple letter issued by M/s All India Transport Agency, Mumbai. The revenue has contended that the letter cannot be considered a proper document or an invoice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even on the wrongly availed Cenvat credit, the liability to pay interest will arise only when same has been utilized wrongly towards payment of central excise duty. Since, in this case the balance of the Cenvat credit has always remained more than the amount of Cenvat credit taken in the books of accounts same cannot be held to have been utilized towards payment of central excise duty and, therefore, the question of payment of interest under Section 11AB on the same does not arise. The learned Advocate has also contended that penalty as imposed under Rule 15 (2) of the Cenvat Credit Rules readwith Section 11AC of Central Excise Act is not imposable on them as they have no intention of evading the central excise duty and it is only a matter of interpretation whether the Cenvat credit taken by them are as per the provisions of law or not. 8. We have also heard the learned Departmental Representative who has reiterated the findings as given by the Adjudicating Authority. 9. We have heard both sides and also perused the record of appeal. There are two main questions before us to answer in this case, namely (i) whether the Cenvat credit of ₹ 3,03,35,302/- taken in the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. In view of the above facts, we find that though the credits might have been availed in the books of accounts their actually utilization have only started after the month of October, 2007 and before that the appellant have already made payment of service tax. Thus, we find that there was no utilization of Cenvat credit without payment of service tax. When holding the above view, we place also our reliance on the order of the Tribunal in the case of India Cement Ltd. vs. CCE 2018 (5) TMI 603 CESTAT HYDERABAD. The relevant extract of this judgment is reproduced below :- 6. On careful consideration of the submissions made, we find that the service tax liability on the GTA Services under reverse charge mechanism for the period in question is not disputed by both sides; as also the discharge of such service tax liability by the appellant. It seems that the appellant has availed such service tax credit before discharging the same to the Government of India. We find that the absence of any dispute that appellant has discharged the tax liability as per the provisions of service tax rules and there also being no dispute as to eligibility to avail CENVAT credit before few days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no utilization of the credit of payment of service tax. Therefore, even the interest is not applicable in the facts of the present case. As per our above discussion and taking support of the case of Gujarat Pipavav Port Ltd. (supra), the impugned order is modified and the appeal is allowed . 15. Apart from above, we are also of the view that only taking credit in the books of accounts does not amount to same having been utilized by the appellant because firstly, the balance of credits was always above the disputed amount and secondly, the value of service including service tax was also paid by the appellant between July 2007 to October 2007, we find no wrong, in this way, in utilization of the Cenvat credit. This view is also supported by Hon‟ble Karnataka High Court judgment in the case of Bill Forge Pvt. Ltd. (supra). The relevant extract of this judgment is reproduced below :- 19. Rule 14 of the CENVAT Credit Rules, 2004 reads as under: Rule 14. Recovery of CENVAT credit wrongly taken or erroneously refunded. - Where the CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of CENVAT credit and that the interest would be payable from the date CENVAT credit is taken or utilized wrongly. 22. In the instant case, the facts are not in dispute. The assessee had availed wrongly the Cenvat credit on capital goods. Before the credit was taken or utilized, the mistake was brought to its notice. The assessee accepted the mistake and immediately reversed the entry. Thus the assessee did not take the benefit of the wrong entry in the account books. As he had taken credit in a sum of ₹ 11,691-00, a sum of ₹ 154-00 was the interest payable from the date the duty was payable, which they promptly paid. The claim of the Revenue was, though the assessee has not taken or utilized this Cenvat credit, because they admitted the mistake, the assessee is liable to pay interest from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice and service tax amount paid. We find that though the document may not be with the name of the prescribed document which are mentioned under Rule 9 (1) of Cenvat Credit Rules, 2004, however, all the particulars which are relevant have mention on it. It can be seen that Rule 9 (2) proviso provides as under :- [(2) No CENVAT credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document : Provided that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, [assessable value, Central Excise or Service tax registration number of the person issuing the invoice, as the case may be,] name and address of the factory or warehouse or premises of first or second stage dealers or [provider of output service], and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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