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2023 (6) TMI 646 - CESTAT NEW DELHI
CENVAT Credit - invoices addressed to unregistered premises - Reversal of Cenvat credit in terms of Rule 6 of CCR - Service Tax on services provided by AM Best, Hong Kong.
CENVAT credit availed by the appellant on invoices address to unregistered premises - HELD THAT:- This issue was considered by a Division Bench of the Tribunal in M/S RAJENDER KUMAR & ASSOCIATESS VERSUS COMMISSIONER OF SERVICE TAX, DELHI-II [2020 (11) TMI 621 - CESTAT NEW DELHI], and after placing reliance upon the decision of the Karnataka High Court and decisions of the Tribunal, the Division Bench observed that 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.
In view of the decision of the Tribunl in Rajender Kumar & Associatess, it has to be held that the registration of the premises with the Service Tax Department is not a condition for availing CENVAT credit. The demand could not, therefore, have been confirmed.
Reversal of CENVAT Credit - denial of benefit of section 73 (3) of the Finance Act to the appellant for the reason that the provision of section 73 (4) of the Finance Act would be applicable - HELD THAT:- Section 73(3) of the Finance Act provides that if service tax has been paid and due intimation has been provided to the Central Excise Officer, then a notice under section 73(1) is not to be issued. This fact that service tax had been deposited and intimation given is not disputed. Paragraph 2 of the show cause notice itself mentions that not only the credit had been reversed but the service tax had also been paid before the issuance of the show cause notice. The question that remains to be examined is whether the provision of sub-section (4) of section 73 of the Finance Act would be applicable.
In the instant case, the service tax returns filed by the appellant do disclose the relevant facts. It cannot, therefore, be urged that there was any suppression on the part of the appellant, much less, suppression with an intent to evade payment of service tax. The appellant is also the public sector undertaking and in view of the decision of the Tribunal in the case of the appellant in Oriental Insurance Company Ltd., no mala fide intention can be urged - Such being the position, the provision of section 73(4) of the Finance Act could not have been invoked.
The impugned order dated June 17, 2015 cannot, therefore, be sustained and is set aside - Appeal allowed.