9911796707
TMI Blog2024 (11) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... use notices were barred by limitation. Cenvat Credit availed on photocopies of invoices - Respondent has wrongly availed the Cenvat credit on the basis of photocopies alone which does not bear the signature of the issuing authority, therefore, we set aside the impugned order and confirmed the demand for the normal period from October, 2008 to March, 2009 along with interest; no penalties are required to be imposed on the respondent. Accordingly, the matters are remanded back to the Original Authority to quantify the demand of wrongly availed Cenvat Credit for the period October, 2008 to March, 2009 along with interest. Both appeals are disposed of on the above terms. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Yashpal Singh, Authorized Representative Present for the Respondent: Shri Vishal Mohan, Advocate ORDER These two appeals have been filed by the Department assailing the Order dated 09.08.2011 passed by the Commissioner whereby the Commissioner has dropped the proceedings initiated vide show cause notice issued on 12.04.2010 read with corrigendum dated 05.05.2011 against M/s Satellite Communication, Khalini, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to Cenvat credit of input services received from broadcasters of television signals. (c) that the infirmities or the deficiencies alleged in the invoices were not the fatal deficiencies but curable defects. Hence, the present appeals by the Department. 3. Heard both parties and perusal of the material on record. 4. Ld. AR for the Department submits that the impugned order is not sustainable in law and the competent authority reviewed the Order-in-Original and found that the impugned order is not sustainable in law because the Cenvat Credit can be allowed only on the basis of production of original documents prescribed in Rule 9(1) of Cenvat Credit Rules, 2004, and not on the basis of production of photocopies of the said documents as held by the adjudicating authority. 5. Ld. AR further submits that Adjudicating Authority has simply accepted the plea of the respondent regarding loss of all the original documents files without giving any findings on this issue as to how, when and where these files were lost. The loss of these documents have remained unsubstantiated as the respondents did not appear to have lodged any FIR in this regard with the jurisdictional Police Authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 4.6 that there is no allegation in the show cause notices that the documents on the basis of which Cenvat credit was availed did not have full details as mentioned in the proviso to Rule 9(2). He further submits that extended period of limitation has been wrongly invoked because the infirmities was detected during the course of audit and during the relevant time, there was no requirement under the law to submit the invoices on the basis of which the Cenvat Credit was availed with ST-3 returns. 6.1 He further submits that the Commissioner has observed in para 4.7 that when the law itself did not require the submission of invoices with the ST-3 returns then how the respondent could have been charged with suppression of facts so as to bring the case within the ambit of limitation. He further submits that Commissioner in para 4.8 has held that for the period from March, 2005 to September, 2008 the show cause notice is beyond normal period of one year and the Commissioner has also held that the normal period of limitation is from October, 2008 to March, 2009. 7. After considering the submissions of both the parties and perusal of the material on record, we find that the relevant rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard with the jurisdictional police authorities. Further, we find that the observation of the Adjudicating Authority that instructions contained in CBEC's Excise Manual Supplementary Instructions were not applicable to service provider is not tenable because the Cenvat credit Rules are equally applicable to Cenvat Credit invoices issued under both Central Excise Rules as well as Service Tax Rules. Further, we find that the respondent has not even placed those photocopies of invoices before the Tribunal to examine the same in order to satisfy itself regarding the deficiencies in the said invoices. Further, we find that the decisions relied upon by the Ld. AR consistently has held that Cenvat credit cannot be taken on the basis of photocopies alone. The Tribunal in the case of Century Raon Vs. CCE, Thane-I 2014 (309) ELT 524 (Tri.-Mum) in para 5 which is reproduced herein below : 5. The CENVAT Credit scheme adopted and operationalized in India is based on the Tax Credit Method which relies upon sanctity of the documents. That is why certain documents have been prescribed statutorily for availing of the credit. If those documents are not submitted, there is no vested ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling the ST-3 returns and it was not required during the relevant time to submit the copies of invoices with ST-3 returns and it was only during audit, it was noticed by the Department that the respondent is availing the Cenvat credit on photocopies. Further, we find that as per proviso to Section 73(1) of the Finance Act, extended period of limitation upto the five years can be invoked in the case where any service tax has not been paid or short paid by reason of- (a) fraud; or (b) Collusion; or (c) willful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules thereunder with intent to evade payment of service tax 10. Further, we find that the Department has not been able to establish that there was intention of the appellant to evade the payment of service tax. Further, the Commissioner has rightly observed in para 4.8 of the impugned order wherein he has held that the show cause notice is within normal period of limitation of one year for the period from October, 2008 to March, 2009 and for the remaining period of time i.e. March, 2005 to September, 2007; the show cause notices were barred by limitation. 11. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
