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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 ..... LLAHABAD ] where it was held that 'the premises are not covered in the listed premises in their Centralised R.C. Thus, this premises cannot be said to be used for providing output service.' CENVAT Credit taken on Xerox copy of invoices and similar documents termed as improper documents - HELD THAT:- Reliance placed in UNION OF INDIA VERSUS HIRA STEELS LTD [ 2010 (9) TMI 867 - CHHATTISGARH HIGH COURT ] where it was held that 'invoices were duly verified by Range Superintendent after getting satisfied from the concerned, departments has allowed Modvat credit, for the purpose of deciding the disputed question of fact, the Tribunal is the final authority, no substance in this appeal.' CENVAT Credit availed on debit notes/demand notes/credit notes - HELD THAT:- Reliance placed in the case of appellant s Mumbai unit, where Commissioner has dropped the demand - demand set aside. Thus, these issues has been decided in favour of the appellant, there are no merits in the impugned order to the extent of denying the credit on these accounts - appeal disposed off. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15); (v) I impose a penalty equal to hundred percent of the CENVAT credit wrongly availed i.e. 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 covering the period April'2009 to 07.04.2011 (FY 2009-10 2010-11), confirmed at Para 16(1) above, on the noticee under Rule 15 of the CCR, 2004 ibid read with sub-rule 1 of Section 78 of the Finance Act, 1994 [substituted by the Finance Act, 2015 (w.e.f. 14.05.2015)] as CENVAT credit of service tax has been availed by suppression of facts and contraventing the provisions of Rule 2, 3 Rule 9 of the CCR, 2004 ibid with intent to evade payment of service tax as discussed in Para 15.6 above; (vi) I impose a penalty equal to Ten per cent of the CENVAT credit wrongly availed [i.e. 10% of Rs.2,12,82,576/- i.e. Rs.21,28,258/-] i.e. Rs.21,28,258/-(Rupees Twenty One Lakh Twenty Eight thousand two hundred Fifty Eight only) (2nd show cause notice dated 20.04.2015 covering the period April'2013 to March, 2014 (FY 2013-14), on the noticee under Rule 15 of the CCR, 2004 ibid read with Section 76 of the Finance Act, 1994 [Section 76 substituted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show cause notice dated 06.08.2014 was issued to the appellant asking them to show cause as to why- (1) Cenvat credit of Service Tax amounting to Rs. 17,46,86,919.00 (Rupees Seventeen Crore Forty Six Lakh Eighty Six Thousand Nine Hundred and Nineteen only) wrongly avalled on Input services, las mentioned in the foregoing paras, during the period from 2009-10 to 2012- 13, should not be demanded and recovered from them under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to section 73(1) of the Finance Act, 1994. As the party has already deposited an amount of Rs.13,492.00, the same should not be appropriated against the above demand and remaining amount should not be demanded and recovered. (2) Interest on Cenvat credit amounting to Rs. 17.46.86.919.00, wrongly avalled by them should not be demanded and recovered from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 75 of Finance Act, 1994. (3) Penalty under Rule 15 of the Cenvat credit Rules 2004 read with Section 78 of Finance Act, 1994 should not be imposed upon them. 2.4 Subsequently, for the period April 2013 to March, 2014 another show cause notice dated 24.04.2015 was issued to the appellant on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and accounts.- (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) an invoice issued by- (i) a manufacturer for clearance of (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; (ii) an importer; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002; (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit---- 17.1 I find that Rule 9 of Cenvat credit Rules, 2004 lays down the provisions for availment of Cenvat credit only on the basis of documents specifically prescribed in sub-Rule (1) of Rule 9. Such documents should contain certain information in order to make it a valid document for availing Cenvat credit. However, as per sub-Rule (2) of Rule 9, it is clarified that if all the required information is not contained in such documents but contain basic information and Deputy Commissioner/Assistant Commissioner satisfied that services or goods mentioned in such documents is actually received and accounted for in the books of account, then in that case Cenvat credit may be allowed. 17.2 I find that Sub Rule (5) of Rule 3 of Cenvat Credit Rules, 2004 refers to invoice in Rule 9 of Cenvat Credit Rules, 2004. The 'invoice' referred in Rule 9 is either invoice issued by manufacturer i.e., as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt that the said invoice shall not contain the details of the duty payable. The manufacturer shall, within five working days from the issuance of the proforma invoice prepare the invoice in terms of this rule after making adjustments in respect of the goods rejected and returned by the buyer. The proforma invoice and the invoice issued in terms of this sub-rule shall have cross reference to each other by way of their serial numbers: Provided further that the said period of five working days, as referred to in the first proviso, may be extended upto a period not exceeding twenty-one days, inclusive of the said period of five working days, by the Commissioner of Central Excise, on receipt of a request from the said manufacturer. (2) The invoice shall be serially numbered and shall contain the registration number, address of the concerned Central Excise Division, name of the consignee, description, classification, time and date of removal, mode of transport and vehicle registration number, rate of duty, quantity and value, of goods and the duty payable thereon. Provided that in case of a proprietary concern or a business owned by Hindu Undivided Family, the name of the proprietor or H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination, it is found that the said debit note contains debit note number, date of issue, details of the person/company to whom issued, details for which debit note is issued, Value of the capital goods, Cenvat amount, Service Tax registration No., TIN No., and address of Service provider as well as Service receiver. The said debit note is found to be signed by the authorized signatory of the company. The above shows that the debit notes in question carry the essential specifications as mentioned under Rule 9 of Cenvat credit Rules, 2004 and Rule 4 A of Service Tax Rules, 1994. 21. In the above situation a credit of duty shown in the document cannot be denied just because a document is named debit note' particularly when the duty paid character or the use of Capital goods is not challenged in SCN. The only ground taken for denying credit in SCN was that credit was taken on debit notes which were not specified document under Rule 9 of Cenvat Credit Rules, 2004. It has been well settled law under Central Excise that the substantial benefit of Cenvat Credit cannot be denied on procedural grounds. 21.1 In case of CCE Nashik Vs M/s. Graphite (I) Ltd., [2007 (212) ELT 54 (Tri)], th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 25.4 From the above. I find that the debit notes issued by the vendor contains all the relevant details as prescribed/required under Rule 4A of Service Tax Rules, 1994 and hence qualifies as a specified document for availing Cenvat Credit under Rule 9 of Cenvat Credit Rules, 2004.Thus I hold that debit notes on which Cenvat credit has been taken by the noticee are valid documents for availing the Cenvat Credit and hence the allegation made in the show cause notices that debit notes is not an specified document to avail Cenvat credit, is not justifiable and required to be set aside. (iii) By Order-in-Original No.74/STC-IV/MRRR/16-17 dated 30.06.2016 of Commissioner Service Tax IV Mumbai, demand on similar issues has been dropped by observing as follows:- 16. Submission in respect of the CENVAT credit availed on debit notes. a. CENVAT credit shall be allowed on basis of debit notes raised by service provider It will be evident from the above submissions that the company has entered in to agreement with various service providers for obtaining the service of passive telecom infrastructure. Para 8.2 and 8.3 of the agreement provides for manner of charging. The service provider raises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or a ,r-morandum shipment as it is to a sale. Document showing details of a sale or ply-chase transaction. A list sent to a purchaser, factor, consignee, etc. containing the items together with the price and charges of merchandise sent to be sent to him. A writing made on behalf of an importer, specifying the merchandise imported, and its true cost or value. Meaning of the word bill As defined 0 'Oxford Dictionary' a word bill means- Statement of charges for goods supplied or services rendered, the amount owed, As defined by Black's Law Dictionary' a word bill means - written statement of the terms of a contract, or specification of the items of a transaction or of a demand. Also a general name for any item of indebtedness, whether receivable or payable; an account for goods sold, services rendered, or wont done. As a verb, as generally and customarily used in commercical transactions; bill is synonymous with charge or invoice 19. It is evident from the same that the bill is raised for recovery of the amount for goods or services supplied by the person raising the bill. It represents the amount payable by the person on whom the invoice or bill is raised. The docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per provisions of Rule 9(I) of CEN V AT Credit Rules, 2004, hence, are in nature of invoices - Credit not deniable. [pares 4, 5) ii. Commissioner Of Central Excise, Indore Versus Grasim Industries Ltd. 2011 (24) S.T.R. 691 (Tri. - Del.) CENVAT credit of Service tax Duty paying documents - Debit notes issued by service provider - Impugned order cEseloses that said debit notes contain all the details required to be mentioned in the invoice except for its name - Debit notes issued by the service provider can be treated as invoice - CENV AT credit availed on the basis of debit notes, admissible -Rule 9 of CENVAT Credit Rules, 2004. [2009 (239) E.L. T.39S (P H) distinguished]. (Para 4), iii. Pharmalab Process Equipments Pvt. Ltd. 2009 (242) ELT 467 (T) 4. Commissioner (Appeals) also has taken the same view. However, from the copies of debit notes submitted during the hearing I find that the debit notes issued by the service provider contained the details of service tax payable, description of the taxable service (sales commission), value of the taxable service, registration no. of the service provider, name and address of the service provider. These are the details which are require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not a specified document under rule 9 of CCR, 2004. It is submitted that Quippo Telecom Infrastructure Ltd. has issued invoices and not debit notes for the reimbursement of diesel and electricity charges. They also submitted specimen copies of the invoices issued by the said vendor. It will be evident from the invoices attached that the caption invoice is indicated in tight corner of the document. Thus it will be evident from the above that Quippo Telecom Infrastructure has issued invoices and not debit notes which is specified document under rule 9(1)(f) of the CENVAT credit Rules 2004 for availing the CENVAT credit.. Thus they submitted that the demand in respect of the credit availed on the service tax paid to Quippo needs to be dropped. The total amount of service tax credit availed on the strength of the invoices issued by Quippo Telecom Infrastructure Ltd. Is Its. 3,79,19,638/- which is included in the demand of Rs.11,28,86,302/- which needs to be dropped in view of the above submission. They submitted that when the collection of service tax has been accepted by the department based on the said document. 4.3 Thus, following the ratio of these decisions where these i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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