9911796707
TMI Blog2024 (1) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.12.2010.Thereafter, the Department did not conduct any enquiries for three long years and have issued a show-cause notice dated 12.08.2013. It was open to the Department to collect whatever information that was required to satisfy themselves before the issuance of show-cause notice. The Department requires to prove the inadmissibility of credit or any lapses on the part of the appellant in a positive proactive manner rather than on the averment that the appellants failed to supply the requisite information. However, as the admissibility of CENVAT credit not being in dispute, the same cannot be denied for procedural inadequacies, more so, when Department neither disputed the documents submitted by the appellants nor conducted any further verification. Time limitation - HELD THAT:- The audit was conducted on 26.04.2010, 27.04.2010 and 25.08.2010; Department sought certain clarifications vide letter dated 01.10.2010 and the appellants have submitted the same vide letter dated 22.12.2010; thereafter, for three years, Department did not take any action and the show-cause notice was issued on 12.08.2013; the appellants have been regularly submitting the ST-3 Returns. Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Circular dated 16.02.2018 clarified that credit cannot be denied for procedural irregularities. She relies upon the following cases: Jai Balaji Industries Ltd. 2022 (58) GSTL 361 (Tri. Kolkata) United Phosphorus Ltd. 2022 (11) TMI 747- CESTAT AHMEDABAD Mafatlal Industries Ltd. 2020 (43) GSTL 562 (Tri. Ahmd.) Pricol Ltd. 2023 (3) TMI 230- CESTAT CHENNAI CCE VS Dashion Ltd. 2016 (41) STR 884 (Guj.) 3M Electro Communication India Pvt. Ltd. 2023 (6) TMI 1104-CESTAT CHENNAI Terex India Pvt. Ltd. 2018 (3) TMI 603- CESTAT CHENNAI Gabriel India Ltd. 2016 (12) TMI 155- CESTAT NEW DELHI Hical Technologies Pvt. Ltd. 2020 (3) TMI 1304- CESTAT BANGALORE 3. Learned Counsel for the appellants submits that eligibility of CENVAT credit and the requirement provide input service invoices should be questioned at the end of the ISD and not at the end of the appellant; Department has not initiated any proceedings against the ISD Registration for the same; therefore, denial of credit to the appellant is not legally tenable. She relies on CST Vs Godfrey Philips India Ltd. 2009 (239) ELT 323 (Tri. Ahmd.) and United Phosphoro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules, 2004 and Rule 4A of Service Tax Rules, 1994 and whether in the facts and circumstances of the case, extended period can be invoked. We find that leaned Commissioner finds that the dispute is related to the nature of the documents issued by the input service distributor; the documents submitted was monthly summary of credit transferred by the ISD and these sample documents bear manually written numbers; the documents clearly mentions that the said bill mentions advance payments and payments for measured works; the document cannot be considered to be an invoice or bill or challan under Rule 9(1)(g) of CENVAT Credit Rules, 2004; moreover, it does not contain registration number, address, date of issue, serial number etc. as required under Rule 4A(2) of Service Tax Rules, 1994; it does not contain any information of the credit distributed. Learned Commissioner further finds that decision in the case of M/s BSNL, Salem relied upon by the appellants has been appealed against before Hon ble High Court of Chennai. 7. We find that learned Commissioner has mainly relied upon Rule 9(1)(g) of CENVAT Credit Rules, 2004 and Rule 4A(2) of Service Tax Rules, 1994 and comes to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit in the present situation. 7. Considering the above factual position, we find that impugned order is not sustainable. Same is set aside. 8. In the result, appeal filed by the appellant is allowed. In view of the above discussions and observations made by us, there is no sufficient reason to deny Cenvat credit of Rs. 41,94,123/-, hence demand of the said amount is set aside. 8. We further find that the Tribunal in the case of Dashion Ltd. (supra) finds as follows: 7. The second objection of the Revenue as noted was with respect of non-registration 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 disentit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal or proposition to issue show-cause notice to the input service distributor for wrong availment of Cenvat credit. 7. We find that the view or conclusion arrived at by the lower authority in denying the Cenvat credit is incorrect as there is no dispute of receipt of services. Our views also fortified by the decision of this Bench (supra) [2009 (239) E.L.T. 323 (Tri.-Ahmd.)] wherein this Bench had recorded the following findings : When we look at the functions of the input service distributor and the documents to be issued by him for passing on the credit, it becomes quite clear that the document issued by him for passing on the credit does not contain the nature of service provided and the details of services. It contains the service provider s details, distributor s details and the amount. Obviously the eligibility or otherwise of the service tax credit has to be examined at the end of input service distributor only. This is further supported by the fact that both Central Excise assessees and Service Tax assessees are under the regime of self-assessment and therefore it is the assessee himself who has to specify that the credit availed by him is admissible. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by limitation. We find that audit was conducted on 26.04.2010, 27.04.2010 and 25.08.2010; Department sought certain clarifications vide letter dated 01.10.2010 and the appellants have submitted the same vide letter dated 22.12.2010; thereafter, for three years, Department did not take any action and the show-cause notice was issued on 12.08.2013; the appellants have been regularly submitting the ST-3 Returns. Moreover, keeping in view the fact that the appellants are a PSU, we find that no mala fide intention can be attributed to the appellant. We find that different Benches of the Tribunal have been continuously holding the same. We find that Principal Bench at New Delhi held in the case of G.M. Telecom, BSNL - 2006 (3) S.T.R. 122 (Tri. - Del.)held as follows: 5. The appellant is a Department of Central Government. It is bound to make payment including crediting of the amount received from the subscribers towards the telephone charges and service tax in accordance with the directives given by the Chief Controller of Accounts. It is the case of the appellant that they were strictly following the procedure prescribed by DOT Headquarters in consultation with the Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
