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TMI Blog2024 (12) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (ii) I disallow the CENVAT credit wrongly availed and confirm the demand of CENVAT credit of Central Excise duty/ Service Tax of Rs.2,12,82,576/- (Rupees Two crore Twelve lakh Eighty Two thousand Five hundred Seventy Six only) for the period April'2013 to March 2014 ( 2nd show cause notice dated 20.04.2015), under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73(1) and Section 75 respectively of the Finance Act, 1994; (III) Since out of an amount of Rs.14,98,45,423/- (Rupees Fourteen crore Ninety Eight Lakh Forty Five thousand Four hundred Twenty Three only) ( 1st show cause notice dated 06.08.2014), the CENVAT credit wrongly availed for the period April' 2009 to March 2013, confirmed at Para 16(1) above, an amount of Rs.93,192/- (Rs.13492/- + Rs.1700/ (Rs13492/-+ Rs.1700/- + Rs.78,000/-) (Rupees Ninety Three thousand One has already been reversed by the party along with Interest of 75,421/-(Rs.5479/- +Rs.1,283/- +Rs.68,659/-) (Rupees Seventy Five thousand Four hundred Twenty one only), I order for appropriation of the said amount and interest against the demand confirmed at Para 16(i) above for the period April'2009 to March'2013 as discussed in Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered premises (Rs.) 2009-10 6,81,050.00 2010-11 2,05,51,912.00 2011-12 0 2012-13 0 Sub Total 2,12,32,962.00 Chart-B Period Credit availed for the rent paid for unregistered premises (Rs.) 2009-10 5,88,940.00 2010-11 6,17,846.00 2011-12 0 2012-13 0 Sub Total 12,06,786.00 Chart-C Period Credit availed for the health checkup of new recruiter (Rs.) 2009-10 0 2010-11 1700.00 2011-12 0 Mobi 2012-13 0 Sub Total 1700.00 Chart-D Period Credit taken on the Xerox copy of invoices (Rs.) 2009-10 49,70,692.00 2010-11 67,39,320.00 Sub Total 1,17,10,012.00 Chart-E Period Credit availed on improper documents (Rs.) 2009-10 3,14,13,861.00 Sub Total 3,14,13,861.00 Chart-F Period Credit availed on the invoices in respect of Club Membership (Rs.) 2009-10 78,000.00 2010-11 0 2011-12 0 2012-13 0 Sub Total 78000.00 Chart-G Period Expenditure on AMC Rate of Service Tax including Cess Credit Taken on AMC Charges.(Rs.) 2009-10 15,91,359.00 10.30% 1,63,910.00 2010-11 18,51,241.00 10.30% 1,90,678.00 2011-12 20,74,437.00 10.30% ..... 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TOTAL 3,99,98,078.00 2.4 Both the show cause notices were adjudicated as per the impugned Order-in-Original referred in para-1 above. 2.5 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Atul Gupta learned Counsel appearing for the appellant and Shri Manish Raj learned Authorized Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 We find that the issue involve in the present case is not res-integra, issue-wise decisions allowing the credit on the same facts are reproduced below:- Issue 1: CENVAT Credit disputed on invoices, which were showing billing address of Ahmedabad Office though POs clearly mentioned the services were used by the Appellant. * Mportal India Wireless Solutions Pvt Ltd [2012 (27) STR 134 (Kar.)] * Well Known Polyesters Ltd [2012 (25) STR 411 (Tri. - Ahmd.)] etc. Issue 2: CENVAT Credit availed for the rent paid for unregistered premises. * Samsung India Electronics Pvt. Ltd. [2017 (52) STR 497 (Tri.-All.) affirmed at 2017 (52) STR J253 (All)]. * All spheres Entertainment Pvt. Ltd. [2016 (41) STR 104 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of duty. Explanation-For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar document evidencing payment of additional amount of additional duty leviable under section 3 of the Customs Tariff Act; or (bb) a supplementary invoice, bill or challan --- [inserted by Notification No.13/2011-CE (NT), dated 31-3-2011]; ( c) a bill of entry; or (d) a certificate issued by an appraiser of customs in respect of goods imported through a Foreign Post office; or (e) a challan evidencing payment of service tax -[inserted by Notification No.18/2012-CE (NT), dated 17-3-2012]; or (f) an invoice, bill or challan issued by a provider of input service on or after the 10th day of September,2004;or (g) an invoice, bill or challan issued by an input service distributor under Rule 4 A of the Service Tax Rules,1994. Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which credit was taken earlier. Therefore, invoice referred in Rule 3 (5) of Cenvat Credit Rules, 2004 can be taken as the invoice as per Rule 11 of Central Excise Rules, 2002 or invoice issued as per Rule 4 A of Service Tax Rules, 1994. 18. Now, I refer to provisions of Rule 4 A of Service Tax Rules, 1994, applicable to service provider which are as under: "Rule 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan- (1) Every person providing taxable service shall not later than fourteen days from the date of completion of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him in respect of taxable service provided or to be provided and such invoice, bill or, as the case may be, challan 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, classification and value of taxable service provided or to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uplicate copy being marked as DUPLICATE FOR TRANSPORTER; (iii) the triplicate copy being marked as TRIPLICATE FOR ASSESSEE. (4) Only one copy of invoice book shall be in use at a time, unless otherwise allowed by the Assistant Commissioner of Central Excise, or the Deputy Commissioner of Central Excise, as the case may be, in the special facts and circumstances of each case. (5) [* *i Omitted (6) Before making use of the invoice book, the serial numbers of the same shall be intimated to the Superintendent of Central Excise having jurisdiction. (7) The provisions of this rule shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer: Provided that in case of the first stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Cements Ltd., Vs CCE, Jaipur [2013 (29) STR (Tri.Del)], and (2) Pharmalab Process Equipments Pvt.Ltd, [2009 (242) ELT 467 (Tri)]. 22. Relying upon the above judgments of CESTAT, I hold that the proposal for disallowing credit taken on debit notes does not stand. Since the demand itself does not stand, there is no question of interest and penalty. Therefore, the impugned Show Cause Notice is not sustainable." (ii) Further, by Order-in-Original No. 51-55/STC-IV/MRRR/16-17 dated 31.05.2016 in the case of appellant's Mumbai unit, Commissioner has dropped the demand observing as follows:- "25.3 Thus from a combined reading of the above provisions, I find that a document issued by a service provider containing the details like Serial Number, the name, address ,the registration number of the person providing the service, the name and address of the person receiving taxable service, description, classification, value of taxable service provided and the service tax payable thereon, can be considered as a valid document for availment of Cenvat credit. The noticee submitted sample copies of the debit noted issued by M/s GTL Infraon which the Cenvat Credit has been availed by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 1. infrastructure professional fees: The invoice is raised for this amount for providing passive infrastructure. 2. Site operation service fees: The amount represents the fees in respect of operations carried out on the site. 3. Reimbursement of expenses towards electricity and diesel: The service provider is required to use electricity and diesel for providing the services of site operations. The electricity and diesel-are-inputs for the services, Since, the amount recovered from the company for electricity and diesel is based on actual consumption, these amounts are recovered through debit notes. 17. It will be evident from the above that all the above charges are recovered from the company for providing passive infrastructure. The entire amount is consideration for the said services and the company has not paid for procuring diesel or electricity. Hence they submitted that the company is entitled to the credit of service tax paid on all charges paid by the Company. 18. Rule 9(1) specifies the documents on the basis of which credit is available. The clause (I) specifies 'invoice', 'bill' or 'challan' issued by provider of input service on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the service provider may be titled as debit not; but serves the same purpose of invoice or bill. The company is liable to pay to the service provider based on the debit notes raised by them. 20. The rule 4A of the Service Tax Rules 1994 provides that every person providing the taxable service shall issue an invoice or bill or challan signed by such person or authorized person on taxable service provided. The authorities at the service provider's end have considered the said document as complying with the provisions of rule 4A. The service tax was also collected and paid based on the said document. the credit of the same cannot be denied at the receivers end on the ground that, it is not a specified document. 21. Further, they submitted that during the relevant time, the rule 4A provided that the invoice or bill shall contain the following information. "(i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) description, classification and value of taxable service provided or to be provided; and (iv) the service tax payable thereon. " 22. They referred to debit notes r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These are the details which are required as per Rule 9(2) of CENVAT Credit Rules, 2004.The observations of the Assistant Commissioner are contrary to the facts noticed by me on the basis of documents submitted before me. Since it is not clear as to whether the same documents which were produced before me were produced before the Assistant Commissioner or not, the matter has to go back to the Assistant Commissioner who shall go through the documents, verify whether service has been received and whether all the particulars as required under the Rules are available in the debit notes and adjudicate the matter afresh. If documents contain details requited under Rule-98 (sic) P(2)7 of CENVAT Credit Ruler Benefit of Service Tax Credit maybe extended: Needless to say the appellants shall be given inopportunity to present their case and also the Assistant Commissioner shall be free to get any verification if necessary done." iv. Pallipalayam Spinners (P) Ltd. 2010-TIOL-1723-CESTAT -MAD "2. I have carefully considered the rival submissions and find no warrant to interfere with the impugned order and it is, based upon the Tribunal's decision in the case of Pharmalab Process Equipmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , following the ratio of these decisions where these issues has been decided in favour of the appellant, we do not find any merits in the impugned order to the extent of denying the credit on these accounts. 4.4 We also note that appellant has reversed the inadmissible credit as detailed bellow along with interest:- S.no. Credit Reversed Amount of reversal paid 1. Appellant has reversed the credit availed on health check-up services, despite the bona fide belief of the Appellant that the disputed credit is admissible under Rule2(1) read with Rule 3 of CCR. (regarding FY 2010-11) Rs. 1700 2. Appellant has reversed the credit availed in respect of club membership services despite the bona fide belief of the Appellant that the credit is admissible in respect of the club membership charges paid. Rs. 78,000 along with an interest of Rs. 68,659 Demand in respect of these has also been confirmed. 4.5 Summarizing- * Except for these two amounts reversed for which demand has been confirmed against the appellant, we do not find any merits in the impugned order. * As we are setting aside the demands on merits of the case, we do not go into the issue of limitation. * ..... X X X X Extracts X X X X X X X X Extracts X X X X
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