9911796707
TMI Blog2019 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... registered while issuing ISD invoices - the issue is settled that even though the credit by the head office is passed on to the manufacturing the unit without having registration, only on this ground credit cannot be denied. Denial of CENVAT credit on the ground that the ISD invoices were not contained the details as required under Rule 4A of service tax Rules, 1994 - HELD THAT:- The relevant sub Rule in case of ISD is sub Rule (2) of Rule 4A. According to which the ISD invoices should contain the information was provided under Clause 1 to 4 above. On the perusal of the ISD invoices, that along with its attachment found that all the four details as required under sub-Rule 2 Clause (i) to (iv) are clearly mentioned in the invoices and its attachment. The adjudicating authority has gone beyond the requirement mentioned in sub Rule (2) of Rule 4A and denied the credit on the ground that certain information as provided under Rule 4A(1) are not mention in the ISD invoices - on reading of Rule 4A, we found that the details required under Clause (i) to (iv) of sub-Rule 4A(1) is required only for an invoice issued by a service provider and not by the ISD, therefore, expecting information b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 16 June 2005 5. May-June 2006 ISD shifted from Kolkata to Chennai 6. 04.04.2007 Chennai office registered as an ISD 7. 03.07.2008 Fresh ISD application filed in Kolkata 8. 08.07.2008 ISD Registration granted in Kolkata 3. The appellant during the period from September 2005 to March 2007 had availed cenvat credit on the strength of 23 invoices (11 + 12) issued by ISD in Kolkata and Chennai respectively. This credit was under dispute. The credit was denied vide two orders in original holding that (i) the appellant distributed cenvat credit as an ISD from Kolkata and Chennai prior to obtaining registration as an ISD; (ii) the invoices are deficient for want of ISD registration number, description of input services payment of the service tax by the service provider as required under Rule 4A of the service tax Rules, 1994; (iii) some of the input services do not qualify definition of input services. Both, the impugned orders confirmed demand along with interest and penalties. Therefore, assessee filed two appeals and one appeal was filed by the Revenue for enhancement of the penalty. 4. Sh. Prakash Shah Ld. Counsel appearing on behalf of the appellant assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm including the name of the service provider and his registration number. He submits that the finding of the Learned Adjudicating Authority that invoices do not conform to requirement of Rule 4A of the Rules appears to be incorrect. 7. For the sake of easy reference, the appellant also produced sample copies of invoices along with relevant annexure in the compilation tendered during the hearing. He submits that the said invoices are in conformity with Rule 4A (2), which deal with the particulars requirement to be mentioned in ISD invoices. The alleged deficiency pointed out in the impugned order are relating to the invoices to be issued by the service provider and not by an ISD. In any event, the only other deficiency pointed by the Learned Commissioner is that the description of services are not mentioned in the attachment and it is not shown that the suppliers of input services have discharged the service tax. He submits that there is no requirement of Rule 4A (1) to give description of the input services in the ISD invoices. In the attachment to the ISD invoices gave name and registration number of the service provider no material is produced to show that suppliers have not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch in the case of Mangalore Refinery & Petrochemicals Vs. C.C.E.,-Mangalore-2013 (30) STR 475 (Tri.- Bang.) and Market Creators Ltd. Vs. C.C.E., & S.T.,Vadodara-2014 (36) S.T.R., 386 (Tri.-Ahmd.). He submits that since there is not statutory provision for availing the credit on the invoices issued by the unregistered ISD, therefore, in the present case credit passed on by the ISD who is unregistered, cannot be allowed. 11. We have carefully considered the submission made be both the sides and perused the records. We find that the cenvat credit to the appellant was denied by the adjudicating authority on the three ground (i) the appellant distributed cenvat credit as an ISD from Kolkata and Chennai prior to obtaining registration as an ISD; (ii) the invoices are deficient for want of ISD registration number, description of input services payment of the service tax by the service provider as required under Rule 4A of the service tax Rules, 1994; (iii) some of the input services do not qualify definition of input services. As regard, the first ground for denial of cenvat credit that the appellant have availed the cenvat credit on ISD invoices issued by the unregistered ISD, We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide." 12. This above judgment has been upheld by the Hon'ble Gujarat High Court in an appeal filed by the Revenue which was dismissed. It was reported as Commissioner of Central Excise Vs. Doshion Ltd.-2016 (41) S.T.R. 884 (Guj.). The Hon'ble Gujarat High Court has given the following finding. "7. The second objection of the Revenue as noted was with respect of nonregistration of the unit as input service distributor. It is true that the Government had framed Rules of 2005 for registration of input service distributors, who would have to make application to the jurisdictional Superintendent of Central Excise in terms of Rule 3 thereof. Sub-rule (2) of Rule 3 further required any provider of taxable service whose aggregate value of taxable service exceeds certain limit to make an application for registration within the time prescribed. However, there is nothing in the said Rules of 2005 or in the Rules of 2004 which would automatically and without any additional reasons disentitle an input service distributor from availing Cenvat credit unless and until such registration was applied and granted. It was in this background that the Tribunal viewed the requirement as curable. Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether or not containing address of the person receiving taxable service but containing other information in such documents as required under this sub-rule:] [Provided further that in case the provider of taxable service is a goods transport agency, providing service to any person, in relation to transport of goods by road in a goods carriage, an invoice, a bill or, as the case may be, a challan shall include any document, by whatever name called, which shall contain the details of the consignment note number and date, gross weight of the consignment and also contain other information as required under this sub-rule.] [Provided further that in case the provider of taxable service is a goods transport agency, providing service to a customer, in relation to transport of goods by road in a goods carriage, an invoice, a bill or, as the case may be, a challan shall include any document, by whatever name called which shall contain the details of the consignment note number and date gross weight of the consignment and also contain other information as required under this sub-rule.] [Provided also that where any payment towards the value of taxable service is not received and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoices and its attachment. The adjudicating authority has gone beyond the requirement mentioned in sub Rule (2) of Rule 4A and denied the credit on the ground that certain information as provided under Rule 4A(1) are not mention in the ISD invoices. In this regard, on reading of Rule 4A, we found that the details required under Clause (i) to (iv) of sub-Rule 4A(1) is required only for an invoice issued by a service provider and not by the ISD, therefore, expecting information by the adjudicating authority is without authority of any legal provision, therefore, on this ground also the credit cannot be denied. 16. As regard, the ground for denial of credit on the eligibility of the input services. We find that no such allegation was made in the SCN. Only allegation was related to aforesaid two grounds for denial of credit. Hence, the admissibility of input services which was not raised in the SCN, the adjudicating authority has no jurisdiction to decide an issue which was not available in the SCN, therefore, the impugned order on this count has clearly travelled beyond the scope of SCN, As per our above discussion, the appellant are entitled for the cenvat credit on the ISD ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
