Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 1245 - AT - Service TaxCENVAT Credit - input service distributor - credit on the strength of invoices which were neither issued in the name of the appellant nor addressed to the registered premises of the appellant nor even appearing the service tax registration of the appellant - Held that:- Tribunal Mumbai in Pipavav Shipyard Limited Vs. CCE & ST Bhavnagar [2015 (8) TMI 58 - CESTAT AHMEDABAD] has held that there is no reason to deny the credit on the ground that the address of ISD was not mentioned in the invoice - Once there is no dispute with regard to the service tax paid the insufficient particulars in the invoice cannot be the ground to deny the credit. Otherwise also, the law has been settled that a substantive benefit cannot be denied due to procedural/ technical infirmity - appellant is entitled to cenvat credit distributing it to the units as received on the basis of the invoices issued in the name of the appellant but addressed to the unit to which services were provided. Liability of service tax - leasing of manufacturing facilities etc. - Held that:- It is apparent from record that panEra is an associate company and the payment transactions are made by the book adjustments. Commissioner(Appeals) has wrongly applied Rule 6(4A) as it is applicable only when the assessee for any reason is unable to correctly estimate on the date of deposit the actual amount payable for any particular month or quarter. This is not the fact for the present Appeal - Herein the appellant had received the payment (on books) however the services for the quarter Oct to Dec 2009 were not provided by the appellant. Thus, the findings of the Commissioner invoking Rule 6(4A) are apparently erroneous. Also the finding that Rule 6(3) would have been applicable had the agreement would be terminated is also patently wrong finding and as such is liable to be set aside - as per Rule 6(3) STR, the appellant was entitled for the impugned adjustment towards subsequent liability. Refund of CENVAT Credit - Reversal of the amount of cenvat credit in respect of trading activity - Held that:- The statute did not have the definition of trading as service for the period before 01.04.2011. The period involved herein is also prior 2011. Since it was not an exempted service for the impugned period question of applicability of Rule 6 of Cenvat Credit Rules, 2004 i.e. about maintaining a separate accounts for providing taxable service alongwith the trading activity exempted service were not required nor was required any option to be exercised by the appellant for the said period. The reversal of cenvat credit as confirmed is therefore held to be a wrong decision and thus is liable to be set aside. Appellant has deposited the proportionate amount of cenvat credit - Appellant is entitled for refund. CENVAT Credit - outward freights - place of removal - goods of the appellant were removed from factory to Mandoli godown to be stored there for further being transported to the distributors or the dealers - Held that:- Though the godown is the part of the definition of the place of removal but the place of distributor / dealer is not included in the said definition hence the GTA service only be to the Mandoli godown is now service eligible for credit GTA beyond godown is inadmissible for credit. Therefore, that Commissioner(Appeals) has rightly denied the cenvat credit in respect of outward freight - credit rightly denied. Sustainability of service tax paid through cenvat and not in cash in import of service - Held that:- For the present issue admittedly the services received by the appellant are from a company based outside India which is not an associated company of the appellant. In the given set of legal provisions and the given circumstances, the appellant had to discharge his liability under reverse charge mechanism and Section 67(4)(c) of the Act equally applies. Thus, payment could be made by any other mode than cash as is mentioned in 67(4)(c) since payment is made from the amount credited. The same is acceptable - findings of the Commissioner qua this issue are therefore set aside. Short payment of service tax - intellectual property service - Held that:- The Commissioner has ignored the documents, the compilations whereof is provided by the appellant at the stage of personal hearing itself - findings about lack of evidence are therefore not sustainable - the issue is set aside. Liability on the figure of Miscellaneous Income shown in the balance sheet - Held that:- SCN dated 22.10.2009 and 29.09.2010 have been issued by the Department for an amount of ₹ 16,99,562/- and ₹ 9,73,807/- received under R&D income for the period 2008-09 and 2009-10. The demand as confirmed for ₹ 4,07,535/- includes both these amounts as is apparent from the acknowledgment in the SCN - the demand under this Head recoverable from the appellant is only ₹ 97,167/-. The findings of the Commissioner under this issue are therefore partially set aside. Time limitation - Held that:- SCN has been issued after a normal period of one year. The entire decision of Commissioner is based on the finding either of lack of evidence or on the applicability of the provision other than the one relied upon by the appellant - Resultantly, there appears no such evidence of any positive act on part of the appellant to have an intention to evade the tax. Liability has been confirmed on the basis of mere omission to give correct information is not suppression facts unless it was deliberate to stop the payment of duty - the Department was not entitled to invoke the extended period of limitation. Resultantly, the SCN as such is held to be barred by time. Appeal disposed off.
|