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2013 (12) TMI 156 - AT - Service TaxRefund of accumulated Cenvat credit - Rule 5 of the Cenvat Credit Rules, 2004 - Notification No. 5/2006-CE - Restriction on availment of Cenvat credit - Availability of Cenvat credit of service tax paid by the service provider under supplementary invoices - Restrospective or prospective - Held that:- Cenvat credit availed can be availed by a manufacturer or provider of output service on the basis of challans evidencing the payment of service tax by a person liable to pay the service tax or an invoice, bill or challan issued by the provider of input services or an invoice, bill or challan issued by input service distributor under Rule 4A of Service Tax Rules, 1994 - supplementary invoice evidencing payment of additional duty amount is not to be treated on a different footing vis-a-vis the original invoice evidencing original payment of duty as both these documents were issued under the same provisions of law. Moreover in the Service Tax Rules, 1994 there is provision only for issue of invoice by the service provider or input service distributor and, as such, the Service Tax Rules also do not mention the issue of supplementary invoices when additional service tax is required to be paid due to any reason. In view of this, the term ‘invoice’ mentioned in Clause (f) and (g) of Rule 9 (1) of Cenvat Credit Rules, 2004 has to be treated including supplementary invoice, as during the period of dispute, with regard to service tax payment, the Rule 9 (1) did not make any distinction between ‘invoice’ and ‘supplementary invoice’. Restriction during the period prior to 1/4/11 was only in respect of supply of inputs and capital goods as provided in clause (b) of Rule 9 (1) and such restriction in supply of services was introduced only w.e.f. 1/4/11 by inserting clause (bb) to Rule 9 (1). Since Rule 9 (1) (bb) does not has retrospective effect, the provisions of the same cannot be applied during the period prior to 1/4/11. I find that same view has been taken by the Division Bench in the cases of M/s JSW Steel Ltd. Salem Works vs. CCE, Salem reported in [2008 (9) TMI 74 - CESTAT, CHENNAI], Chaphekar Engg. Pvt. Ltd. vs. CCE, Pune-I [2013 (11) TMI 1362 - CESTAT MUMBAI] and Secure Meters Ltd. vs. CCE, Jaipur -II reported in [2010 (1) TMI 284 - CESTAT, NEW DELHI]. Moreover, when a restriction on availment of Cenvat credit in respect of input services has been introduced from a particular date by inserting a provision and that provision is not retrospective, the same cannot be applied with retrospective effect - Decided in favour of assessee.
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