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TMI Blog2021 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... the main allegation is that the description of services in the documents on which credit has been availed is not correct, at the time of adjudication, the main finding is that no services have been provided by the dealers to the appellant and that therefore credit is not eligible. At this juncture, it needs to be pointed out that the Department has no dispute with the Service Tax collected from the appellant by the dealer and remitted to the Government. The assessment of Service Tax paid at the dealer s end has not been disturbed/questioned by the Department; only the credit availed at the service recipient s end has been questioned by issuing the present Show Cause Notice. The impugned order cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... abadran appeared and argued the matter. He submitted that the Department has denied the credit alleging that no service has been received by the appellant from the car dealers. He adverted to page 56 of the appeal memorandum which contains an invoice dated 31.03.2015 issued to the appellant by the M/s. Lanson Value Added Services. The service is described as "Expenses incurred towards computing network connectivity through extranet, Internet space, Furniture and Fixtures, consumables, salary of staff, computers,…" etc. For easy reference, scanned specimen copy of the said invoice is as below: 3.1.2 That such facilities provided to the appellant would fall under the category of 'Business Support Services'. The dealer has collected from the appellant applicable Service Tax for the amount paid by appellant. In the SCN, the Department contends that the description of the services is not correct and the credit has been held to be ineligible for the reason that the documents do not comply with Rule 9 of the CENVAT Credit Rules, 2004. 3.2.1 He submitted that the appellant had, vide their reply to the Show Cause Notice dated 25.04.2016, given detailed submissions with regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of India (IRDAI). He referred to Annexure-15 at page 459 of the appeal paper-book. It is pointed out by him that the letter by IRDAI dated 12.08.2015 would show that such outsourcing by insurance companies to dealers is recognized by IRDAI. 3.5 He relied on the decision of the Hon'ble jurisdictional High Court in the case of M/s. Modular Auto Ltd. v. Commissioner of Central Excise, Chennai - North Commissionerate in C.M.A. Nos. 723 to 725, 795 and 806 to 810 of 2018 & ors. reported in 2018-VIL-541-MAD-ST 3.6.1 Learned Counsel for the appellant also argued on the ground of limitation. He submitted that the Show Cause Notice is dated 14.10.2015 whereas the period involved is from 2010 to 2015. Majority of the demand in the present Show Cause Notice is beyond the normal period of limitation. The extended period is not invokable as there is no suppression of facts, much less with intent to evade payment of Service Tax. He argued that the appellant was under the bona fide belief that they were entitled to avail and utilize the credit of Service Tax paid on various input services. 3.6.2 That Prior to this Show Cause Notice, an earlier Show Cause Notice dated 24.10.2011 was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Khandewal Food Products [2018 (8) G.S.T.L. 112 (Raj.)]; (iv) C.C.E. & S.T., Hyderabad-II v. M/s. Peers Technologies Pvt. Ltd. [2019 (27) G.S.T.L. 701 (Tri. - Hyd.)]; (v) M/s. Shoppers Stop Pvt. Ltd. v. Commr. of Service Tax, Mumbai-II [2018 (8) G.S.T.L. 405 (Tri. - Mum.)]; (vi) M/s. Star Industries v. Commr. of Cus. (Imports), Raigad [2015 (324) E.L.T. 656 (S.C.)]; (vii) M/s. Shree Ranie Gums & Chemicals P. Ltd. v. Commr. of C.Ex., Jaipur-II [2017 (4) G.S.T.L. 340 (Tri. - Del.)]; (viii) M/s. Jemcon Industries v. C.C.E., Kolhapur [2018 (17) G.S.T.L. 264 (Tri. - Mum.)] 5. Heard both sides and carefully perused the records. 6.1 The allegation of the Department is that no services have been provided by the dealers to the appellant as per the invoices and therefore, the appellant is not eligible to avail credit of the Service Tax reflected in this invoices. In paragraph 31 of the Order-in-Original dated 30.01.2017, the crux of the allegations of the Department has been recorded by the Original Authority, as under: "31. On careful consideration of the statements of personnel of M/s. Chola and Dealers, I find that (i) The payment made by M/s. Chola to M/s. Hyundai / D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no requirement to pay service tax; that at the time of accepting service tax from the dealer, the department chooses to look at the form of transaction and accept service tax. In this regard, I find that the issue involved is not about the service tax payable by the Dealer. It is about the mentioning of true description of services in the invoice and the services mentioned in the invoices in the instant case admittedly were not provided by the Dealers. Only after the in-depth investigation conducted with the Dealers, the fact of Dealers issuing invoice with the description suggested by the Taxpayer have come to light. Hence their contention that department cannot approbate and reprobate in the same case is not valid." 7.3 It is not disputed that the dealer has paid Service Tax on the services described in the invoices. If that be so, the denial of credit at the recipient's end cannot be justified by the Department without reopening the assessment at the dealer's end. 8.1 A similar issue came up for consideration in the case of M/s. Modular Auto Ltd. (supra). The substantial questions of law considered in the above case are as under: "2. The above appeals are admitted on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el counsel for the Revenue, produced a lecture on Multi Protocol Label Switching with Quality of Service in High Speed Computer Network to explain as to what is Multi Protocol Label Switching (MPLS) and it has been stated therein that it is a method that directs data from one system node to the next based on short path lables rather than long network addresses in high-performance telecommunication association. Referring to a chart showing the working methodology, it is submitted that it is a facility created and the beneficiary is BIL and no input service is rendered by the BIL to the assessees for them to claim Input Tax Credit. 13. To test the correctness of the said submission, we give the following illustration, which is broadly the nature of transactions done by the assessees with BIL. 14. The BSNL / Reliance Communications Private Limited have provided the MPLS facility to BIL and assuming the amount to be paid is ₹ 100/- towards the cost and ₹ 10/- towards the Service Tax, when the invoice is raised by the BSNL/Reliance Communication Private Limited for the said amount and the BIL has paid ₹ 110/- to BSNL/Reliance Communication Private Limited, which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity performed by the BIL for monitoring of production activities of the assesses cannot by any stretch of imagination be considered as an input service or in relation to the manufacture of final products of the assesses, is a statement, which is unsubstantiated by any record. At best, it can be taken as a personal opinion of the Tribunal, which could not have been a reason to reverse the credit availed by the assesses. 17. What is important to note that the assessees' specific case is that there has been a service by BIL to the assessees in the matter of retrieval of data and service tax has been collected and paid by BIL and the correctness, legality or otherwise of the tax paid by the subject providers cannot be called in question by the Central Excise Officer having the jurisdiction over the assesses availing the credit. This question has not been considered. If the impugned orders are allowed to stand, then it would in effect mean that the jurisdictional assessment officers of the assesses are sitting in the judgment over the assessment made on BIL, over which, they have no jurisdiction." (Emphasis added) 8.3 The above decision squarely applies to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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