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TMI Blog2024 (11) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... on the sample of the volunteers obtained during human trials. Since, this nature of activity has to be carried out at different places, but the same is carried out by the appellant at Ahmedabad only. Therefore, merely because of obtaining the blood samples of volunteers at different places such as Mumbai, Nadiad and Mehsana but the final study of the samples are carried out at Ahmedabad office, where the final analysis report is prepared. For all the activities, as regards the expenses, the Ahmedabad office only making the payment for those expenses. Therefore, all the activities carried out irrespective at different places such as Mumbai, Nadiad and Mehsana, but same are accounted for and carried out from Ahmedabad only. Therefore, there is no reason to deny the credit in the peculiar facts of the present case. Centralized registration - Revenue's contention that the appellant have not obtained the centralised registration, for this reason Cenvat credit cannot be denied as held in catena of the judgments that for the purpose of availment of Cenvat credit registration is not prerequisite. The only criteria to allow the Cenvat credit on any input service is that the service sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on statement as Annexed-2 of the appeal memo. Accordingly, on this count also demand is not sustainable. We place reliance on the decision in the case of Chartered Logistics Ltd [ 2023 (7) TMI 770 - CESTAT AHMEDABAD] dealing with the situation where there is a demand on difference of value shown in books of accounts and ST-3 return. Merely on the difference between the value mentioned in books of accounts and ST-3 returns, demand of service tax cannot be confirmed. Demand on the premise of totaling mistake and short payment of service tax to that extent - We find that the appellant have provided the explanation before the first Appellate Authority and as per the statement in Annexed at page No. 19 of the appeal it clearly shows that the appellant have correctly paid service tax on the taxable service and there is no calculation mistake as alleged by the revenue. Therefore, on this ground also the demand is not sustainable. Demand on the basis of debit notes issued by Wockhardt Ltd the allegation of the department is that the appellant could not provide the proof of payment of service tax to the Government Exchequer. We find that the appellant have submitted that they have paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where it is admitted facts that the above branches were unregistered and all taxable services were provided from the registered premises located at Ahmedabad and maintained centralised books of account including billing system? b. Whether the demand of service tax of Rs.1,50,829 on the basis of reconciliation of income with the books of account vis- -vis ST-3 returns during the year 2008-09 was sustainable? c. Whether there was a totalling mistake while arriving at the value for payment of service tax on Test, inspection and certification services and short payment of service tax of Rs.67,190/-? d. Whether demand of service tax of Rs.2,02,902 is recoverable from the Appellant on the basis of debit notes issued to M/s. Wockhardt Ltd for Rs.7,77,600/- and Rs.8,64,000/- and recovered service tax of Rs.96,111/- and Rs.1,06,791/- but could not provide the proof of payment to Government Exchequer? e. Whether larger period of limitation can be invoked in a case where there was no any wilful misstatement, suppression or mala fide intention to evade service tax? 1.1 The Learned Commissioner (Appeals) in the impugned order upheld the demand for the reasoning given below:- (i) The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not been conducted by the department, the short payment of service tax and inadmissible Cenvat credit would have been undetected. Being aggrieved by the above Order-In-Appeal, the present appeal filed by the appellant. 2. Shri Hardik P Modh Learned Counsel appearing on behalf of the appellant submits that as regards the issue No. (i), wherein the Cenvat Credit of Rs. 10,25,059/- was denied. He submits that the Appellant undertakes the services of the Technical Testing Analysis Service from the branches that are performed on the blood samples of the Volunteers obtained during the human trials. The IP molecule which is administered to the Volunteers is sometimes mixed with ancillary products. Study of the samples are sent to the Ahmedabad office from where final report is prepared. The Appellant incurred expenses for supply of crates and contains as well as security services at the branches for which the payment is made from the Ahmedabad office. Since the Appellant did not provide any taxable services from the branches, they did not take registration. The Appellant is having centralized billing system and maintaining centralized accounts. Hence, the Appellant availed CENVAT credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes in the month of July 2008. The Appellant received money subsequently from M/s. Wockhardt Ltd and therefore, they deposited service tax with the department at the time of receipt of money. It is to be noted that the issue of calculation of service tax on accrual basis for the period prior to 01.04.2011 is not legally sustainable as the Point of Taxation Rules, 2011 came into effect on 01.04.2011. 2.4 As regards the issue No. (v), i.e. whether the demand is time barred or otherwise, he submits that the disputed period involved in the appeal is of 2008-09 and the show cause notice has been issued on 22.10.2013 and therefore, the entire demand is barred by limitation. He submitted that the demand of extended period is not sustainable as no suppression of fact or mala fide exist on the part of the Appellant. In this regard, the Department has invoked the extended period alleging suppression of facts, for the reason that the taxable services were not disclosed in the service tax returns. It is submitted that the Appellant obtained service tax registration and the department had conducted various audit from the date of registration. There is no iota of evidence to show in the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite. The only criteria to allow the Cenvat credit on any input service is that the service should be used in or in relation to output service. The service should be tax paid. These criteria is not under dispute. The appellant have centralised accounting at Ahmedabad only. Therefore, even though the part of the activity are carried at different places but for all the activities of different places, the accounting is done at Ahmedabad office only. Therefore, in our considered view there seems to be no reason to deny the Cenvat credit. This issue has been considered by this Tribunal in the case of Manipal Advertising Services Pvt Ltd (supra), wherein the Tribunal held that if a person is discharging service tax liabilities from his registered premises, the benefits of Cenvat Credit on the service tax paid by the service providers cannot be denied to the assesse only on the ground that the said services are in the name of branch offices. There is no dispute that the branch offices are not registered with the Service Tax Authorities and they are not discharging service tax liabilities. The relevant para of the said Tribunal judgment is reproduced below:- 6. It is undisputed in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. (ii) Whether the Appellant is entitled to avail Cenvat credit on the strength of invoices/bills issued to their office which is unregistered; and (iii) Whether the Appellant was required to obtain Central Excise Registration or ISD Registration for availing Cenvat credit on the invoices issued on a different address. 8. The Commissioner has held that the Appellant was not eligible to avail the Cenvat credit on the basis of invoices for two reasons. The first is that most of the invoices raised on the registered premises on the strength of which the Appellant had availed the Cenvat credit were not addressed to the Appellant or the said invoices were not in accordance with the conditions as laid down in 1994 Rules and the 2004 Rules. The second is that the Appellant did not have a centralized service tax registration for different offices nor it was registered as input service distributor. Thus, as the Appellant was not eligible to avail the Cenvat credit in respect of invoices not addressed to the registered premises as per Rule 4A(1) of the 1994 Rules read with Rule 9(2) of the 2004 Rules, Cenvat credit amounting to Rs. 1,30,90,500/- [Rs. 26,80,236 plus Rs. 1,04,10,273] was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or service covered by the said document have been received and accounted for in the books of account of the receiver, he may allow the Cenvat credit. 11. In regard to the office situated at B5/116 Safdarjung Enclave, New Delhi, which is registered with the Service Tax Department, the Commissioner observed as follow : From the certificate (issued by the M/s. Bhasin Co., Chartered Accountant) and supporting documents submitted by the Noticee, I find that Cenvat credit availed by the Noticee on the basis of invoice/letter/debit note lack vital details and are not proper documents required for availing the Cenvat credit. The noticee in support of above certificate was not able to submit even a single proper invoice. Other documents prescribed under Rule 9 of the Cenvat credit Rules read with 4A of the Service Tax Rules, 1994. Hence contention of the Noticee is not tenable, I thus hold that Cenvat Credit of Rs. 26,80,236/- availed on the basis of invoices addressed to registered office of the Noticee is inadmissible on the ground stated above and wrongly availed utilized by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d challans to be issued by the service provider. It states that invoices, bills and challans shall be serially numbered and shall contain the following, namely-(i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) description and value of taxable service provided or agreed to be provided; and (iv) the service tax payable thereon. Further, sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004 states that no Cenvat credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document. The proviso to this Rule states that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service tax registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, and the Deputy Commissioner of Central Excise or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited also observed as follows : 9. Regarding denial of Cenvat credit on the ground that the invoices were addressed to unregistered premises of the appellant, we note that there is no dispute regarding eligibility of input service for availability of credit to the appellant. The denial of credit is only with reference to address in the document. We find in various decisions, this Tribunal held that the credit cannot be denied on this reason. Reference can be made to the decision in Manipal Advertising Services Pvt. Ltd. (supra). We also note that in the appellant s own case on the same issue, the Original Authority for the later period held that denial of credit cannot be justified on this ground, vide order dated 21-7-2016. 18. This is what was also held by a Division Bench of the Tribunal in Pernod Ricard India Private Limited. 19. Once the requirement of Rule 4A of the 1994 Rules and Rule 9 of the 2004 Rules are satisfied, the benefit of Cenvat credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of Cenvat credit on the unregistered premises. 20. The Commissioner has further held that the benefit of Cenvat credit for services rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Chartered Logistics Ltd (supra), dealing with the situation where there is a demand on difference of value shown in books of accounts and ST-3 return. The relevant part of the judgement are reproduced below:- 5.5 We also find that absolutely no proper inquiry has been made by the department with the Appellant as regard the disputed difference. No statement in this regard asking them about the income declared to the income tax authorities has been recorded. No evidence was produced by the department to show that the amounts declared by the appellant before the income tax authorities are pertaining to the taxable services. In absence of any such evidence, it cannot be said that the income declared by them to the income tax authorities is attributable to the taxable services provided by them to their clients during the disputed period . 5.6 In view of the above legal position, we are of the view that the demand of services tax is not sustainable on the basis of CBDT data or data provided by the Income tax department. In view of the above judgment, merely on the difference between the value mentioned in books of accounts and ST-3 returns, demand of service tax cannot be confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable on the ground of limitation also. On the point of limitation, the following judgments supports the case of the appellant:- a). In the case of Pahwa Chemicals Pvt. Ltd (supra) the Hon ble Apex Court has held that mere failure to declare does not amount to wilful mis-declaration or wilful suppression and there must be some positive act on the part of the party to establish either wilful mis-declaration or wilful suppression. The Apex Court further held that when the facts are before the department and the party is in the belief that affixing of label makes no difference, does not make a declaration, there would be no wilful mis declaration or wilful suppression. If the department felt that the party was not entitled to the benefit of the notification it was for the department to immediately take up the contention that the benefit of the notification was lost. b). In the case of Continental Foundation Joint Venture (Supra) the Apex Court held as under:- 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or collusion and, therefore, has to be construed strictly. Mere omission to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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