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TMI Blog2024 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the appellants have availed cenvat credit on documents, which are not cenvatable documents as they are not in the prescribed form/format under Rule 9(1) of CCR, 2004 - as per proviso to Rule 9(2) of CCR, 2004, when the documents have the particulars/details as mentioned therein and the jurisdictional Deputy Commissioner/ Assistant Commissioner is satisfied that the goods covered by the document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit - the appellant has being availing cenvat credit and filing periodical returns indicating such availment. Extended period of limitation - HELD THAT:- The appellant has been filing the ER-1 returns, hence there is no suppression of facts by the appellant, therefore invocation of extended period is not tenable and imposition of penalties under section 11AC of Central Excise Act, 1994 read with Rule 15 of CCR, 2004 are not sustainable. The impugned orders confirming the demand of cenvat credit along with the interest and imposition of penalties are not sustainable and need to be set aside - the appeals filed by the appellant are allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... September 2008 to November 2009 on 07.02.2011 invoking extended period. On adjudication, the demand was confirmed with interest and penalty. Subsequent show-cause notice was issued on 26.03.2014 for the period January 2010 to July 2013 demanding Rs.2,33,48,950/- invoking extended period of limitation. Thereafter, periodical show-cause notices were issued for the period from January 2015 to June 2017 demanding duty with interest and penalty. All these demand notices have been confirmed with interest and penalty by passing the orders mentioned as above. Aggrieved by the said orders, the present appeals are filed 4.1. At the outset, the learned advocate for the appellant has submitted that the appellant has rightly availed credit on valid and cenvatable documents, which squarely falls within the ambit of Rule 9 of the CCR, 2004. It is their submission that the proviso to Rule 9(2) allows credit of duty paid shown on documents/invoices, where all the details prescribed under the said Rule 9 are not disclosed, provided such invoices / documents contain the details of payment of duty, taxable value etc., and the Deputy / Assistant Commissioner of Central Excise is satisfied that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Insurance Co. Ltd., Vs. Commr. GST & CE, Chennai-[ 2021(3) TMI 24- CESTAT Chennai] iv. Amara Raja Electronics Ltd Vs. CCE, Tirupathi - [ 2016(43) STR 601 (Tri-Hyd)] 4.3. The learned advocate for the appellant further submitted that the services received by the appellant viz. 'management fee', and 'common sharing of Head office services' squarely fall within the purview of definition of 'input service' as prescribed under Rule 2(l) of the CCR, 2004. They have submitted that the services received by the appellant had been used in or in relation to the manufacture of final products. It is their contention that in absence of paying proportionate service charges to FMGL, the appellant would have to perform all such activities by themselves and incur the applicable expenses on their own and since it would not have been possible for the appellant to carry on the business without human and other resources, the services, the said services are necessary for their business. In support, they have referred to the following judgments: i. CCE, Nagpur Vs. Ultratech Cement Ltd. [2010(20) STR 577 (Bom.) ii. Hindalco Industries Ltd. Vs. CCE, Kolkata-II [Final Order No.75610/2023 dt. 09/06/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies alleging that the invoices issued by Aditya Birla Management Corporation Pvt. Ltd. being not input service distributor; hence cenvat credit is not admissible. After analysing the various provisions and Circulars, the Tribunal observed that there is reasonable nexus between the services and the activities of the appellant; hence admissible to credit. 9. The appellant has also argued that the service tax paid by the service provider cannot be questioned in the hands of the service receiver. We find that this issue is also covered by the judgment of Hon'ble Madras High Court in the case of Modular Auto Limited Vs. CCE, Chennai [2018 (8) TMI 1691 - Madras High Court], whereunder confronted with similar facts and circumstances framed the following questions of law:- a) When the service provider was not before the Tribunal, whether the Tribunal can go into the question as to whether the said service provider had provided service to the appellant or not, more so when the said service provider has been assessed to service tax under Business Support Service for the service rendered by them to the appellant. b) Is the Tribunal not in error in refusing credit to the appellant for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The correct test, which ought to have been applied by the Adjudicating Authority, Appellate Authority and the Tribunal, is as to what is the character of payment made by the assessees on which they have availed the CENVAT credit. 16. In the instant cases, it is not in dispute that whatever the portion of Service Tax component which was collected from the assessees by BIL was only the amount on which the CENVAT credit has been claimed by the assessees. Therefore, unless and until the assessment made on BIL was revised, which obviously could have been done, at this juncture, on account of the expiry of the period of limitation, the interpretation given by the Commissioner (Appeals) as well as the Tribunal with regard to the nature of invoice raised on the assesses is unsustainable. Furthermore, we find that the reason assigned by the Tribunal in paragraph 6.2 stating that the activity performed by the BIL for monitoring of production activities of the assesses cannot by any stretch of imagination be considered as an input service or in relation to the manufacture of final products of the assesses, is a statement, which is unsubstantiated by any record. At best, it can be taken as a ..... 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