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TMI Blog2024 (3) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... ail Cenvat Credit on inputs/input services - Reliance can be placed in BE. BILLIMORIA CO. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [ 2013 (4) TMI 272 - CESTAT MUMBAI] where it was held that As decided in Bharat Heavy Electricals Ltd. Vs. CCE [2012 (4) TMI 197 - CESTAT, MUMBAI] wherein held that the appellant are entitled to utilize centralized Cenvat credit for payment of service tax for the service availed under the category of Commercial or Industrial Service' and Construction of Complex Services'. The Ld. Commissioner (Appeals) ought to have considered that there is no statutory basis for holding that there was a requirement of having the same invoicing series for units having a centralized registration. It is submitted that the sole basis for confirmation of demands in the Order-in-Original was that different invoicing series were being used for the two Units of the Appellant under centralized registration. Holding that the appellant does not have a centralized registration as they do not maintain centralized billing or accounting system as appearing from different invoicing series of the SEZ and Non-SEZ unit of the appellant. Even the learned Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der a centralized registration. 4. The SCN culminated into the Order-in-Original dated 27.03.2017 which confirmed the entire demand raised in the SCN along with interest and penalty. Being aggrieved the appellant filed an appeal before the learned Commissioner (Appeals). Learned Commissioner (Appeals) rejected the appeal on the ground that SEZ unit cannot operate under centralized billing system under Rule 19(7) of the SEZ Rules. Being aggrieved, Appellant is in appeal before the Tribunal. 5. The learned Advocate appearing on behalf of the Appellant submits that the Appellant is entitled to avail and utilize cenvat credit relating to non-SEZ unit to discharge the tax liability of its SEZ Unit when both the units are covered under a centralized registration. It is his submission that none of the statutory provisions applicable to the Appellant i.e. the Act, Cenvat Credit Rules, 2004 Credit Rules or Notification No, 17/2011-S.T. dated 01.03.2011 restricts/prohibits discharge of the output liability of an SEZ Unit making sales or providing services in the DTA by utilising the Cenvat credit of a Non-SEZ Unit of the same assessee when both units are covered under the same centralized re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax liability of the SEZ Unit as it had a centralized registration for both the units. c.) the Appellant had disclosed all the information in their financial records and the Department had gathered information from their statutory documents. d.) The issue pertains to alleged mis-utilization of Cenvat credit by the SEZ unit, however the same credit could otherwise be utilized by the Non-SEZ Unit. This shows that no instance of any additional benefit accrued to the Appellant or any revenue leakage in the present case. 8. The learned Departmental Representative justified the impugned order and prayed that the appeal filed by the appellant be dismissed being devoid of any merits. 9. Heard both the sides and perused the appeal records. 10. Before proceeding in the matter it is better to go through the applicable law. The relevant provisions of the Act viz. Section 93 of the Finance Act, 1994 is reproduced below:- 93. Power to grant exemption from service tax. (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally or subject to such conditions as may be specified in the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices used in the process of manufacture or for the provision of service also do not lay down any such condition or stipulation. The relevant part of the Credit Rules is being reproduced below: Rule 3 (4) The CENVAT Credit may be utilized for payment of (a) Any duty of excise on any final product: or (b) An amount equal to CENVAT credit taken on inputs it such inputs are removed as such or after being partially processed: or (c) An amount equal to the CENVAT credit taken on capital goods it such capital goods are removed as such; or (d) An amount under sub rule (2) of rule 16 01 Central Excise Rules. 2002. Provided that while paying duty of excise or service tax, as the case may be,the CENVAT credit shall be utilized only to the extent such credit is available on the last day at the month or quarter as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be: Provided further that CENVAT credit shalt not be utilized for payment of any duty of excise on goods in respect of which the benefit of an exemption under notification No. 1/2011 C.E., dated 15th March, 2011 I availed Provided also that the CENVAT credit of the duty, or service tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a taxpayer must have centralized billing or accounting system. The provision nowhere provides any requirement of same invoicing series for all the units. Relevant provision is extracted below for the sake of convenience: 2) Where a person liable for paying service tax on a taxable service, (i) Provides such service from more than one premises or offices; or (ii) receives such service in more than one premises or offices; or (iii) is having more than one premises or offices, which are engaged in relation to such service in any other manner, making such person liable for paying service tax. and has centralised billing system or centralised accounting stem in respect of such service and such centralised billing or centralised accounting systems are located in one or more premises he ma at his Option register such premises or offices from where centralised billing or centralised accounting systems are located. [Emphasis Supplied] 14. Similarly, Service Tax Trade Notice No. 03/2011 dated 01.10.2011 on the subject of Procedure and documents required in respect of Centralized Registrations under Rule 4(2)(iii) of the Rules, does not provide for any such stipulation. The Trade Notice nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice being the foundation of the matter, it was not permissible for the Commissioner to travel beyond it. The relevant observation is extracted below: 21. Before concluding, we may mention that, in the present case, the second and the third show cause notices are alone remitted. The first show cause notice dated 21.5.1999 is set aside as time barred. However it is made clear that Rule 7 of the Valuation Rules 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice it would not be men to the Commissioner to invoke the said rule. [Emphasis Supplied] 17. It was held in CC, Mumbai v, Toyo Engineering India Ltd. 2006 (201) ELT 513(S.C.) by the Supreme Court that it was not permissible for the department to travel beyond the show cause notice. The relevant observation is extracted below: 11. Learned Counsel for the Revenue tried to raise some of the submissions which were not al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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