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TMI Blog2023 (9) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ama including invoices on which CENVAT Credits were taken, statements of the witness were recorded and it was noticed that Appellant had contravened the following provisions: (a) Section 70 of Finance Act, 1994 read with Rule 7 of Service Tax Rules, 1994 as the noticee failed to file the service tax return for the period from October 2011 to March 2012 by the due date of 25th of April 2012 till the day of visit of the Preventive Officers on 11.05.2012; (b) Rule 3(1) & Rule 3(4) of CENVAT Credit Rules, 2004, as they availed CENVAT Credit against Construction Service, which is not "input service" for them as the same is not used by them for providing their output service; (c) of Rule 9(1)(f) of CENVAT Credit Rules, 2004, read with Rule 4A(1) of Service Tax Rules, 1994 as they availed CENVAT Credit of Service Tax, against invoices which do not bear Service Tax Registration Number of respective Service Provider; (d) of Rule 9(1)(f) of CENVAT Credit Rules, 2004, read with Rule 4A(1) of Service Tax Rules, 1994, as they availed CENVAT Credit of Service Tax paid on Construction Service, against Invoices/Bills which were not available with them. Accordingly, a show-cause cum-demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 1994; (iv) I impose penalty of Rs.1,04,20,879/- (Rupees One Crore Four Lakhs Twenty Thousand Eight Hundred Seventy Nine only) on M/s. Navkar Corporation Ltd, under the provisions of Rule 15(3) of the Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994; (v) I impose penalty of Rs.10,000/- (Rupees Ten Thousand Only) on M/s. Navkar Corporation Ltd, under the provisions of Section 77 of the Finance Act, 1994;" Assailing legality of the said order, the Revenue-Department through the concerned the Commissioner, Navi Mumbai filed appeal No. ST/88329/2018 against dropping of demand of Rs.99,51,627/- by the Commissioner and permitting availment of input services taken on construction services while the Assessee-Appellant has filed appeal No. ST/88324/2018 against denial of CENVAT Credit of Rs.1,04,20,879/- as inadmissible credits with direction for its recovery alongwith interest, equal penalty and penalty of Rs.10,000/- imposed under provision of Section 77 of the Finance Act, 1994. 3. During course of hearing of the appeal learned Counsel for the Assessee-Appellant Mr. Bharat Raichandani, in placing reliance on the decision of this Tribunal made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the ground that during the relevant period construction service, in view of the Board Circular No. 98/1/2008-ST dated 04.01.2008, was been treated as work undertaken for creation of immovable property and as the resultant output on the same is not a service inputs meant for service in terms of Rule 2(l)(i) of the CENVAT Credit Rules, 2004 is not admissible but the same is a misplaced proposition for which placing reliance on the judgment on the Hon'ble Bombay High Court passed in the case of Coca Cola India Pvt. Ltd. Vs. Commissioner of Central Excise, Pune- III reported in 2009 (15) STR 657 in which Section 2(l) was elaborated and explained, learned Commissioner had correctly set aside the demand. He had drawn our attention to the ratio of the judgment passed in the case of CCE, Visakhapatnam-II Vs. Sai Samhita Storages (P) Ltd. reported in 2011 (270) ELT 33, wherein Hon'ble Andhra Pradesh High Court had clearly held that without use of cement & TMT bars etc., storage and warehouse services could not be provided for which credits are admissible in respect of those raw material like cement & TMT bars. Further, in Mundra Port And Special Economic Zone Ltd. Vs. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n notes submitted by the Assessee in both the cases and the relied upon judgments. In view of the judgment of Sai Samhita Storages (P) Ltd., cited supra that has been consistently followed in Mundra Port And Special Economic Zone Ltd., Vamona Developers Pvt. Ltd. etc. and at various forums permitting availment of CENVAT Credit of the construction service for the specified purpose and relevant period, we find no merit in the Departmental appeal and confirm the findings of the Commissioner on this issue. Now coming to the inadmissibility of credits availed by the Assessee- Appellant, there were two types of rejection order viz. improper document and unavailable document. Assessee-Appellant has contended that only on certain documents the Service Tax registration numbers were not reflected which should have been treated as procedural infraction and on that ground alone, substantial right should not be denied. The other contention of the Appellant is that it is in possession of all the invoices which were shown as unavailable in the order passed by the Commissioner. 6.1 Going by the Commissioner's order it is noticed that he has reproduced sub-Rule 2 of Rule 9 of CENVAT Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that these two sub-rules in no uncertain term state that the burden of proof regarding admissibility of the Cenvat Credit shall lie upon the provider of output service taking such credit." (Underlined to emphasise) Going by the above provisions it can very well be said that the rule itself permits exclusion of certain particular but insists for inclusion of certain particulars including reflection of Service Tax registration number on the invoice to make the credit an eligible credit under the CENVAT Credit Rules, besides the fact that the burden of proof of admissibility of such CENVAT Credit always rest on the provider of output service taking such credits, as could be seen from sub-Rule 5 & 6 of Rule 9 of CENVAT Credit Rules, 2004. This being so, the very argument of Appellant that it is a technical infraction i.e. missing Service Tax registration is an error caused by the service provider would be of no help to the Appellant since the burden lies on it to establish the bonafideness of the duty paying document. 7. It would not be out of place to mention here that during course of hearing of these appeals, sample invoices attached to the appeal memo vis. a. vis. Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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