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TMI Blog2023 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... in itself and in dealing with the Cenvat credit matters, finding given is irrelevant and cannot be imported from the other Rules or Act. Section 11A is strictly for the purpose of issuing show cause notice for demanding of duty even for demanding wrongly availed Cenvat credit, but for the purpose of availment of Cenvat credit, Cenvat Credit Rules, 2004 is applicable - the import of Section 11A to say that 1 year period provided in Section 11A shall apply in the case of availment of Cenvat credit is absolutely illegal, incorrect and imaginary. The Hon ble Delhi High Court in the case of Global Ceramic Pvt Ltd [ 2019 (5) TMI 1432 - DELHI HIGH COURT] clearly held that the time limit shall not apply for the period prior to 11.07.2014 when the amendment of 1 year time limit was prescribed. Thus, the period of 1 year is not applicable during the period when there was no time limit prescribed for availment of Cenvat credit. Therefore, the appellant are eligible for Cenvat credit of Rs. 77,74,439/-. Credit on security service - Denial on the ground that the security service was used for the residential premises of the Director and branch office - HELD THAT:- A very small porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken on the input service after long span of 1 to 4 years. Although the time limit for taking the Cenvat credit on input service has not been prescribed, the normal period of time for demanding duty or service tax is 1 year as per Section 11A and therefore, the appellant should have taken the Cenvat credit within one year and not after longer period. (ii) Rs. 2,21,112/- the credit of security service was denied as the same was used for the unit as well as the residential premises of the director and branch office. (iii) Rs. 75,762/- the invoices do not pertain to the appellant. (iv) Rs. 1,82,602/- the invoices do not contain the service tax registration No. of the supplier of input services. Being aggrieved by the impugned Order-in-Original, the present appeal is filed by the appellant. 2. Shri Devashish K. Trivedi learned Counsel appearing on behalf of the appellant as regards the credit of Rs. 77,74,439/- it is his submissions that during the relevant period no time limit was prescribed for availing the credit. Therefore, merely by referring to time limit provided under Section 11A, credit cannot be denied. He submits that as regard receipt of input service, use the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of C.Ex., Jaipur-II. 2017 (51) STR 325 (Tri.-Bang.) RR Donnelley India Outsource Pvt. Ltd. V/s. CCE, C S.T., Trivandrum. 2017 (47) STR 70 (Tri.-Bang.) Kemwell Biopharma Pvt. Ltd. V/s. Commr. of C. Ex. S.T., LTU, Bangalore. 2015(39) STR 670 (Tri. Mumbai) Shivraj Cable Network V/s. Commissioner of C.Ex., Raigad. 2021 (45) GSTL 184 (Tri. Del.) Rajendra Kumar Associates V/s. Commr. of Service Tax, Delhi-II. 2022 (379) ELT 123 (Tri.-Ahmd.) Essel Propack Ltd. V/s. Commissioner of C.Ex. S.T., Daman. 2010 (262) ELT 983 (Tri.-Ahmd.) Transformers rectifiers V/s. Commissioner of C.Ex.. Ahmedabad. 2011 (273) ELT 535 (Tri.-Ahmd.) Commissioner of Central Excise, Ahmedabad V/s. Pierlita India Pvt. Ltd. Circular F. No. 345/2/2000-TRU dtd. 29/08/2000. 2013 (287) ELT 321 (Tri.-Del.) Steel Authority of India Ltd. V/s. Commissioner of C.Ex. Raipur. 2009 (239) ELT 99 (Tri. Bang.) Coromandel Fertilizers Ltd. V/s. Commr. of C. Ex. (A), Visakhapatnam-IV. 2019 (26) GSTL 470 (Del.) Global Ceramics Pvt. Ltd. V/s. Principal Commissioner of C.Ex., Delhi-I. 2001 (129) ELT 459 (Tri.-Del.) Steel Authority of India Ltd, V/s. Commissioner of C.Ex., Raipur. 2003 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 11.07.2014 when the amendment of 1 year time limit was prescribed. Relevant part of the judgment is reproduced below:- 11.1 The Court would first like to discuss the decision of the CCESC in the case of BRCPL which has been assailed by the Department in W.P. (C) No. 9152/2016. There BRCPL had imported ceramic tiles falling under the Third Schedule to the CE Act and had alleged to have altered the MRP by reaffixing stickers, and this was deemed to be manufactured. This led to the issuance of SCN not only to BRCPL but certain other entities as well. BRCPL voluntarily deposited Rs. 13 lacs as Central Excise Duty during the course of investigation. 11.2 A SCN came to be issued proposing a demand of CE duty totalling Rs. 3,04,73,655/-. BRCPL and the other entities applied to the CCESC for settlement, accepting the duty liability of Rs. 67,38,815/- and interest liability of Rs. 30,48,639/- accepting that the change in MRP should be deemed to be manufactured. BRCPL claimed that it had already deposited CED of Rs. 67,40,000/- along with interest of Rs. 30,50,000/-. It accordingly requested for waiver of penalty and prosecution and allowing deduction of Cenvat Credit of CVD and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the claim for taking the Cenvat credit. Unlike in the case of BRCPL, a penalty of Rs. 60 lacs was imposed and the CE duty was settled without giving credit of the CVD and interest payment. 13. In CCE, Chennai-I v. Amalgamation Valeo Clutch Pvt. Ltd. (supra), the Madras High Court followed Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore (supra) to deny Cenvat Credit. A perusal of the said judgment shows that in paragraph 4, it was conceded by the counsel for the Assessee that the manufacturer cannot take the Modvat Credit after six months from the date of documents specified in First Proviso to Rule 57G of the CE Rules . Therefore, the decision proceeded on a concession. 14. As far as the decision in Rathi Ispat Ltd. v. CCE, Meerut (supra) is concerned, here the reliance is essentially placed on the decision in Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore (supra). None of these decisions are of help as far as the Department is concerned. 15. In the present case, we are concerned with the amendment to the Rule 4 of the CCRs with effect from 11th July, 2014, which reads thus : Provided also that the manufacturer or the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. 20. Likewise in Samtel India Ltd. v. CCE, Jaipur - 2003 (155) E.L.T. 14 (S.C.), it was held that the right to credit accrued to an Assessee on the date the tax on inputs was paid. Once the inputs were used, the Rule imposing a period of limitation, could not be given retrospective effect. 21. The Gujarat High Court in Filco Trade Centre Pvt. Ltd. v. Union of India (decision dated 5th September, 2018 in SCA No. 18433/2017) [2018 (17) G.S.T.L. 3 (Guj.)] followed the dictum of the Supreme Court in Jayam Co. v. Assistant Commissioner (supra) and reiterated that the input tax credit could not be denied on the basis of an amendment, which is prospective. The question dealt with by the High Court was whether Section 140A(3)(iv) of the CGST Act, which declined the Cenvat credit in relation to goods purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the CCESC in the case of the BRCPL is concerned, it is hereby rejected and the W.P. (C) No. 9152/2016 is dismissed. No costs (ii) In the case of Essel Propack Ltd. (Supra), this Tribunal held as under: 4. I have carefully considered the submission made by both the sides and perused the records. The appellant have taken the credit in the month of July, 2013 in respect to the goods received during the period 2009-10 and 2010-11. During that period no time limit was prescribed for taking the credit. Therefore, in my considered view the department cannot import the time limit which is not statutorily stipulated in the law. The time limit has been prescribed by the Notification No. 21/2014-C.E. (N.T.), dated 11-7-2014 whereby the assessee is supposed to take the credit within 6 months/1 year from the date of invoice. Considering this amendment for the past period this Tribunal has considered the similar issue wherein it was held that the invoice issued prior to date of Notification No. 21/2014-C.E. (N.T.), dated 11-7-2014 the Cenvat credit cannot be denied on the ground of limitation. The relevant judgment is as under : Alok Master Batches Pvt. Ltd. v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) 9152/2016 has also observed to the same effect in paragraph 11.4 of their decisions. 6. As such, we find that the issue is no more res integra and stands settled in favour of the assessee. However, the fact that the invoices in question were prior to 1-9-2014 is required to be verified. The Original Adjudicating Authority is directed to do so, with the association of appellant to whom an opportunity would be given. 4.1 In view of the above decision which is based in Delhi High Court judgment of Global Ceramics Private Limited and Ors. (supra), I am of the view that the appellant is entitled for the Cenvat credit since all the invoices on which Cenvat credit was claimed were issued prior to 1-9-2014. 5. The revenue is at liberty to verify this fact, therefore the impugned order is not sustainable and the same is set aside. Since the entire demand is set aside. The personal penalty imposed on Shri Vijay Kumar Srivastaw will also not sustain the same is also set aside. Both the appeals are allowed with consequential relief, if any, in accordance with law. 4.1 This issue has been considered by the Hon ble Punjab and Haryana High Court in the case of Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to avail the shortfall in the Modvat credit at any time. 7. In the light of the aforementioned principles and precedents, the facts in the present case are required to be examined. The period involved herein range from 4-1-1989 to 1-2-1991 and would, therefore, not be hit by the amendment made in Rule 57G which was introduced on 29-6-1995. Accordingly, the aforementioned 3 questions of law are answered as under :- (i) The interpretation of Rule 57G adopted by the Tribunal is incorrect and unjust and, therefore, the period of limitation of six months imported by the tribunal in Rule 57G is unsustainable as the tribunal or the court are not competent to import any specific period of limitation by implication; (ii) (iii) In view of answer to the first question, the question Nos. (ii) and (iii) also have to be decided against the revenue and in favour of the dealer. 8. As a sequel to the above discussion, the reference is answered in favour of the dealer and against the revenue. 4.2 The same issue was considered by Hon ble Allahabad High Court in the case of Ram Sawrup Electricals Ltd. (supra) wherein the Hon ble High Court passed the following o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments which they had submitted lesser amount of Modvat credit was availed by them while taking the benefit of Rule 57A of the Central Excise Rules, 1944. In the case of Raghuvar (India) Ltd. (supra) the Apex Court has held as follows : 13. . It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period. Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but will be attracted only to cases where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded. The section also provides for an extended period on certain contingencies and situations. The situation on hand and the one which has to be dealt with under Rule 57-I, as it stood unamended, does not fall under any one of those contingencies provided for in Section 11A of the Act. Part AA of the Rules in which Rule 57-I is found included provides a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 11A of the Act on its own terms will have no application or operation to cases covered under Rule 57-I of the Rules. 14 .The provisions contained in Section 11A are general in nature and application and the Modvat Scheme being a specific and special beneficial scheme, with self-contained procedure, manner and method for its implementation, providing for its own remedies to undo any mischief committed by the manufacturer in abuses thereof, the provisions of the said special scheme alone will govern such a situation and there is no scope of reading the stipulations contained in the general provisions like Section 11A into the provisions of the Rules in question which alone will govern in its entirety the enforcement of the Modvat Scheme. The question as to the relative nature of the provisions general or special has to be determined, with reference to the area and extent of their application either generally in all circumstances or specially in particular situations and not on the ground that one is a mere provision in the Act and the other is a provisions in the Rule. We are not also concerned in this case with any challenge to the inconsistency of a rule with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excise duty on a final product manufactured on the very day that it becomes available. 18. It is therefore, that in the case of Eicher Motors Ltd. v. Union of India [1999 (106) E.L.T. 3] this Court said that a credit under the Modvat scheme was as good as tax paid . 7. In view of the principle laid down by the Apex Court in Raghuvar (India) Ltd. (supra) provisions of Section 11A of the Act is not attracted and cannot be imparted in respect of the Rules framed for availing of the Modvat, the same principle would apply for the purpose of Section 11B of the Act also. In view of the decision of the Apex Court in Raghuvar (India) Ltd. (supra) the law laid down by the Gujarat High Court in the case of Wipro Ltd. (supra) cannot be said to be a good law any more. We are, therefore, of the considered opinion that provisions of Section 11B of the Act is not attracted in the case of Modvat which is governed by Rules 57A to 57P. Further, during the relevant period no limitation had been provided for availing of the Modvat credit and the amendment in Rule 57G prescribing the limit of six months was introduced on 29th June, 1995 which has prospective effect. Thus, the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute, merely because name of the appellant is not mentioned or incorrectly mentioned the credit cannot be denied for this clerical error. Accordingly, we are of the view that the appellant is eligible for Cenvat credit of Rs. 75,752/- also. 4.3 Impugned order has also denied Cenvat credit of 1,82,602/-. Only on the ground that invoices do not contain the service tax registration of the supplier of input services. We find that except this small lapse there is no dispute that the appellant have received the invoices, services and the payment of such invoices to the supplier of input service. Therefore, merely because registration no. is not mentioned credit cannot be denied. This issue has been considered by this Tribunal time and again, some of the judgments are reproduced below: (i) In the case of Diya Systems (Management) (Supra) the Hon ble Banglore Bench of Tribunal has passed the following decision: 3. I have heard the learned Counsel for the parties and perused the records. The only question which needs to be decided by me in all these three appeals is whether the rejection of refund claim by the authorities below mainly on the ground that the appellants w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L is not in conformity with Rule 4A and Rule 9 of Cenvat Credit Rules, 2004 is also not justified. This rejection is not justified as the invoice contained all the details except the Service Tax Registration number of BSNL is not mentioned which according to me is only an inadvertent error as the Service Tax Registration number is mentioned in the invoice raised by BSNL for telephone connection. In the case of Imagination Technologies India P. Ltd. v. CCE, Pune reported in 2011 (23) S.T.R. 661 (Tri.-Mum.) wherein, it was held that Cenvat credit cannot be denied on the ground that registration number was not mentioned on the invoices so long as payment of tax and utilization of the service is not disputed. Similarly the Tribunal in the case of Secure Meters Ltd. v. CCE, Jaipur reported in 2010 (18) S.T.R. 490 (Tri.-Del.) it has been held that when the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of service tax on input services cannot be denied on the ground that service tax registration was not mentioned on the invoices. Further I also find that in these cases refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, there is no dispute about the fact that the appellant had received certain taxable services from M/s. Mother Power House Pvt. Ltd. and Vision Tech. during the period from December, 2003 to December, 2004, while at that time, the service providers i.e. M/s. Mother Power House Pvt. Ltd. and Vision Tech. were not registered and the invoices issued by them did not mention any Service tax registration no. That they subsequently took the service tax Registration and paid Service tax under supplementary invoice dated 14-9-04, 23-12-03 and 23-12-04 is also not under dispute. There is also no dispute that input services have been used by the appellant for providing output services which are taxable. In view of this, it is not correct to deny the service tax credit on the basis of the above mentioned supplementary invoices, just because at the time of receipt of the input services, the input service providers were not registered and had not mentioned Service tax registration no. in the invoices. When the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of Service tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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