9911796707
TMI Blog2023 (1) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... n license basis for some time and an agreement was duly executed for the purpose - the premises to be mentioned in invoice should be such from where the services have been provided instead of these being the registered premises. Though no Cenvat is allowed if document lacks necessary particulars. But the proviso to Rule 9(2) says that even if there is no precise document but otherwise the requisite details given in the said proviso as noted above are available on record, the Cenvat Credit may be allowed. In the present case, it is rather apparent fact that service provider /appellant had during the period of providing service in question applied for registration and finally got itself registered with the service tax Commissionerate. This fact is sufficient to hold that the invoices of pre-registration phase shall also be considered for availment of Cenvat credit by the appellant - Commissioner (Appeals) has wrongly stuck to Rule 9(2) of Cenvat Credit Rules, 2004, the proviso thereof has wrongly been ignored by Commissioner (Appeals). Resultantly, the invoices issued from unregistered address and the invoice of pre-registration time have wrongly been held to be invalid documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the present adjudication are that- The appellant herein is engaged in providing the consulting service of man power agency and legal assistance. For the later, they were liable for service tax under reverse charge mechanism. During the period June 2016 to March, 2017, they had provided the said service and since immediately after the period the CGST 2017 Act came into existence that the appellant carried forward the Cenvat Credit amount of Rs. 7,49,359/- in TRAN I as was filed by them. However, the department alleged the said Cenvat credit as being wrongly availed on the ground that the same was availed prior taking the registration and that it was availed on improper document i.e. on such invoices which were not in the name of registered address. As such, the violation of Rule 9 of Cenvat Credit Rules, 2004 and Rule 4(8) of Service Tax Rules, 1994 was alleged against the appellant vide the SCN No. 4241 dated 12.12.2019 proposing the denial of aforesaid amount as Cenvat credit. The proposal has been confirmed vide Order-in- Original No. 206/2020-21 dated 21.01.2021. The order has been upheld by the Commissioner (Appeals) vide the aforementioned Order-in-Appeal. Being aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 5.3 therein where Commissioner (Appeals) has relied upon Rule 9(2) of Cenvat Credit Rules which contain the mandate that no Cenvat credit shall be taken unless all the particulars as prescribed under Rule 9 of Cenvat Credit Rules as mentioned therein. In the present case, premises mentioned in the invoice/ documents since were not registered, same amounts to the absence of detail as that of registration number. It is a very basic requirement as per Rule 9 of Cenvat Credit Rules, 2004. Learned Departmental Representative has also relied upon the findings in paragraph 5.5 of the order under challenge where the Commissioner (Appeals) has observed that otherwise also the Cenvat credit in question has been availed on the services which cannot be allowed to be called as input services prior the date of service tax registration. Impressing upon no infirmity in the said order, learned Departmental Representative has prayed that the impugned appeal to be dismissed. 5. Having heard the rival contentions of the parties and perusing the entire record, I observe and hold as follows: The availment of Cenvat credit for an amount of Rs.7,49,359/- as has been availed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al makes it abundantly clear that the provision is absolutely silent for the manufacturer or the service provider to mandatorily be the registered entity at the time when the invoice is issued mentioning requisite details. The Rule makes it clear that a provider of taxable service can take credit of service tax paid on the basis of invoice issued by him to the recipient while providing the service. This Rule is silent to the effect that invoice should be such as is issued by a registered service provider. Invoice therefore is sufficient document to avail Cenvat credit, as per Rule 9 of Cenvat Credit Rules, 2004. Since the main issue is denial of Cenvat credit by the department is non-registration, at this stage, we look into Rule 4 of Service Tax Rules, 1994 which talks about the registration. 4. Registration (1) Every person liable for paying the service tax shall make an application to the [concerned Superintendent of Central Excise], in Form ST-1 for registration within a period of thirty days from the date on which the service tax under [section 66B] of the Finance Act, 1994 is levied: The Rule makes it clear that any person who is liable for paying the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 books of the account of the receiver, he may allow the CENVAT credit.] Though no Cenvat is allowed if document lacks necessary particulars. But the proviso to Rule 9(2) says that even if there is no precise document but otherwise the requisite details given in the said proviso as noted above are available on record, the Cenvat Credit may be allowed. The above observed provision and the relevant requisite discussion above makes it abundantly clear that the service provider of taxable service though has to be registered with the Commissionerate, but when there is no denial of taxable service being provided by a present appellant against the relied upon documents as that of invoices and about discharge of tax liability by the appellant, substantial benefit as that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Also I observe that the show cause notice in this case is dated 12.12.2019. The Cenvat Credit availment has been denied for the period June, 2016 to June, 2017. Thus, it is clear that show cause notice is issued while invoking the extended period of limitation. From the above observed admitted facts, there does not appear any intention on the part of the appellant to evade service tax. Rather apparently and admittedly, the service tax stand already paid by the appellant. It is not the case of the department that service tax paid is a short payment. The extended period could have been invoked pursuant to proviso to section 73 of CGST Act and thus only in a situation where there has been apparent mis- representation, suppression of facts or collusion on part of the appellant that too with intention to evade the tax liability. Since the same is not the fact of the present case, I hold that extended period has wrongly been invoked. Even the penalty on the appellant has wrongly been levied. I draw my support from decision of Hon ble Supreme Court in the case of Anand Nishikawa Co. Ltd. (supra). 11. In view of the entire discussion, the order under challenge is hereby set aside. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
