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TMI Blog2019 (1) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... ociate company and the payment transactions are made by the book adjustments. Commissioner(Appeals) has wrongly applied Rule 6(4A) as it is applicable only when the assessee for any reason is unable to correctly estimate on the date of deposit the actual amount payable for any particular month or quarter. This is not the fact for the present Appeal - Herein the appellant had received the payment (on books) however the services for the quarter Oct to Dec 2009 were not provided by the appellant. Thus, the findings of the Commissioner invoking Rule 6(4A) are apparently erroneous. Also the finding that Rule 6(3) would have been applicable had the agreement would be terminated is also patently wrong finding and as such is liable to be set aside - as per Rule 6(3) STR, the appellant was entitled for the impugned adjustment towards subsequent liability. Refund of CENVAT Credit - Reversal of the amount of cenvat credit in respect of trading activity - Held that:- The statute did not have the definition of trading as service for the period before 01.04.2011. The period involved herein is also prior 2011. Since it was not an exempted service for the impugned period question of applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand as confirmed for ₹ 4,07,535/- includes both these amounts as is apparent from the acknowledgment in the SCN - the demand under this Head recoverable from the appellant is only ₹ 97,167/-. The findings of the Commissioner under this issue are therefore partially set aside. Time limitation - Held that:- SCN has been issued after a normal period of one year. The entire decision of Commissioner is based on the finding either of lack of evidence or on the applicability of the provision other than the one relied upon by the appellant - Resultantly, there appears no such evidence of any positive act on part of the appellant to have an intention to evade the tax. Liability has been confirmed on the basis of mere omission to give correct information is not suppression facts unless it was deliberate to stop the payment of duty - the Department was not entitled to invoke the extended period of limitation. Resultantly, the SCN as such is held to be barred by time. Appeal disposed off. - Service Tax Appeal No. ST/51754/2015 [DB] - FINAL ORDER No. 50079/2019 - Dated:- 22-1-2019 - MR. BIJAY KUMAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 76, 77 and 78 of the Finance Act 1994 read with Rule 15 of Cenvat Credit Rules, 2004. The said proposal was confirmed by Commissioner, Central Excise, Delhi and the Order No. 05 dated 29.01.2015 being aggrieved appellant is before this Tribunal. 2. We have head Shri T.R. Rastogi, Ld. Advocate for the appellant and Shri Sanjay Jain, Ld. DR for the Department. 3. Since the Appeal involves several issues we take up each issue with respective submissions of the parties and our respective findings are as follows:- Issue No. 1 : Whether the appellant being the ISD is entitled to avail cenvat credit on the invoices addressed to the appellants units: 3.1 It is impressed upon on behalf of the appellant that the credit is validly admissible because the invoices are admittedly received in the name of the appellant but have been received indirectly through their units as the units received those invoices from the service providers. The appellant admittedly is the head office and the registered ISD. The cenvat credit taken cannot be denied. The appellant has relied upon Mahindra and Mahindra Limited Vs. CCE Mumbai 2015 (38) STR(Tri. Mum.) and also CCE ST Hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributed. Rule 9 CCR 2004 requires that cenvat credit shall be taken by the manufacturer or the provider of output service or the ISD as the case may be on the basis of following documents: (a) an invoice, issued by (i) a manufacturer for clearance of (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such, (ii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, Is registered in terms of the provisions of Central Excise Rules, 2002; (iii) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahindra (supra) as relied upon by the appellant makes it clear that invoices raised in the name of the appellant but issued to the branch office which was not registered as ISD but the branch office has no separate accounting system and their accounts form part of head office accounts which is registered as ISD the head office is entitled to avail cenvat credit in respect of services received at the branch office and consequently their distribution in manufacturing unit is also proper. In Mahindra Mahindra case, the payment of invoice was made by the branch office but in the present case even the payment of invoices is made by the Head Office/ISD. Hence, the appellant has stronger case of being entitled to avail the cenvat credit. Tribunal Mumbai in Pipavav Shipyard Limited Vs. CCE ST Bhavnagar 2016 (41) STR 151 has held that there is no reason to deny the credit on the ground that the address of ISD was not mentioned in the invoice. Any other case of Lokesh Machine Ltd. Vs. C.C.E. Hyderabad 2017 (48) S.T.R. 486 (Tri. Hyd.). It was held that the defect if any while appellant has properly accounted the credit availed by them is only with regard to the particulars which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. for the period where the plant remained idle was not to be payable by panEra. There is no objection of the Department that during quarter Oct to Dec 2009 the premises and plant in question were idle. Resultantly, it becomes clear that appellant was not entitled to receive the rent for the said quarter. He not only received the rent but had also discharged his tax liability which after receiving the debit notes of 24.03.2010 from PanEra (tenant) that the appellant adjusted the said service tax against the service tax liability for the subsequent period. Such adjustment is very much permissible under sub Rule 3 of Rule 6 of Service Tax Rules, 1994 which provides for : Whether assessee has paid, to the credit of Central Government, Service Tax in respect of a taxable service which is not so provided by him either wholly or partially for any reason the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period provided the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received. It is apparent from record that panEra is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004 i.e. about maintaining a separate accounts for providing taxable service alongwith the trading activity exempted service were not required nor was required any option to be exercised by the appellant for the said period. The reversal of cenvat credit as confirmed is therefore held to be a wrong decision and thus is liable to be set aside. Appellant has deposited the proportionate amount of cenvat credit. Hence, is entitled for the refund thereof. 6. Issue No. 4 Cenvat credit in respect of outward freights The goods of the appellant were removed from factory to Mandoli godown to be stored there for further being transported to the distributors or the dealers. The appellant paid service tax on the transportation charges from Mandoli godown to distributors/ dealers and took the cenvat credit of the service tax so paid on the transportation charges. It has been denied by the adjudicating authority below. This issue earlier had been controversial but now stands settled by the judgment of Hon ble Supreme Court in the case of Commissioner of Central Excise and Service Tax Vs. Ultratech Cement Ltd. 2018 (9) GSTL 337 (S.C.) wherein Hon ble Apex Court has held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce provider for such service provided or to be provided by him. Sub Rule 3 Section 67 of the Act makes it clear that gross amount shall include any amount received towards the taxable service before, during or after the provisions. Sub Section 4(c) Section 67 of the Act clarifies that gross amount charged includes payment by cheque, credit, cash deduction from account and any form of payment by issue of credit notes or debit notes and the book adjustments and any amount credited or debited as the case may be to any account whether called suspense account or by any other name in the books of account of a person liable to pay service tax where the transaction for taxable service is with any associated enterprise. For the present issue admittedly the services received by the appellant are from a company based outside India which is not an associated company of the appellant. In the given set of legal provisions and the given circumstances, the appellant had to discharge his liability under reverse charge mechanism and Section 67(4)(c) of the Act equally applies. Thus, payment could be mnade by any other mode than cash as is mentioned in 67(4)(c) since payment is made from the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ST-3 returns of April-September 2009, no doubt it is apparent that the outstanding amount was not correctly shown in the said return however the above table clarifies that the tax otherwise stands paid fully. The Commissioner has ignored the documents, the compilations whereof is provided by the appellant in the form of above table at the stage of personal hearing itself. The findings about lack of evidence are therefore not sustainable. The findings qua this issue are also set aside. 9. Issue No. 7 Liability on the figure of Miscellaneous Income shown in the balance sheet the liability on the Misc income and income from R D as was shown in the balance sheet for 2008-09 and 2009-10 was confirmed. It is submitted that with respect to the demand for R D income two other SCNs have been issued already. Hence, the demand could have been confined only to a amount of ₹ 97,167/-. The Commissioner rather has confirmed the entire demand of ₹ 4,07,535/-. 9.1 I observe from the record that SCN dated 22.10.2009 and 29.09.2010 have been issued by the Department for an amount of ₹ 16,99,562/- and ₹ 9,73,807/- received under R D income for the period 2008-09 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The expression 'suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 14.As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words mis-statement or suppression of facts which means with inten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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