2025 (5) TMI 397 - AT - Central Excise

Demand on account of proportionate Cenvat reversal in terms of Rule 6(3)(ii) of the Cenvat Credit Rules 2004 - rendering of exempted service during the period 2016-2017 and 2017-2018 up to June 2017 by issuance of the SCN dated 15.01.2022 - whether the appellant is providing any service at all or not? - HELD THAT - As per Section 65(45) of the Finance Act 1994 the service means any activity carried out by a person for another for consideration . Therefore service means an activity carried out by a person for another person. In this case it is required to see that whether the appellant is provided service to another person or not. It is admitted fact that appellant is an another unit of the appellant themselves for which they have provided the service. Therefore it cannot be said that the appellant is provided service to another person. Admittedly in this case the appellant has provided job work activity to their own unit therefore it cannot be said that the appellant has provided any service to another person. Therefore provisions of Section 65B(44) of Finance Act 1994 are not applicable to the facts of the case. As there is no service provided by the appellant therefore it cannot be said that the appellant has provided any exempted service or taxable service. In that circumstances the provision of Rule 66B(44) of the Cenvat credit 2004 are not applicable to the facts of this case. In that circumstances no service tax is payable by the appellant being they have not provided any service. The fact is noted that the show cause notice has been issued on 15.06.2022 for the period 2016-2017 and 2017-2018 up to June 2017 the show cause notice issued to the appellant beyond the period of five years. Therefore the demand pertaining to the period up to May 2017 is not sustainable. As the said period is beyond five years therefore the show cause notice is barred by limitation - further the appellant was provided permission to JSPL Angul under Rule 4(6) of CCR 2004 to get job work done by the appellant therefore the activity of job work undertaken by the appellant was known to the respondent. Hence extended period of limitation is not invokable. Conclusion - The appellant is not liable to reverse Cenvat credit under Rule 6(3)(ii) and Rule 6(3A) of the CCR. Furthermore the extended period of limitation for issuance of the SCN is not justified as the Department had prior knowledge of the arrangement. There are no merit in the impugned order - appeal allowed.

Summary

Issues Presented and Considered

The core legal questions considered by the Tribunal include:

1. Whether the appellant provided a "service" within the meaning of Section 65B(44) of the Finance Act, 1994, given that the job work was undertaken for another unit of the same legal entity.

2. Whether the job work activity undertaken by the appellant qualifies as an "exempted service" under Rule 2(e) of the Cenvat Credit Rules (CCR), 2004 and Section 66D of the Finance Act, 1994.

3. Whether the appellant was liable to reverse proportionate Cenvat credit under Rule 6(3)(ii) read with Rule 6(3A) of the CCR, on account of rendering exempted services during 2016-2017 and 2017-2018 (up to June 2017).

4. Whether the extended period of limitation for issuance of the Show Cause Notice (SCN) dated 15.06.2022 was rightly invoked by the Revenue.

5. The applicability and scope of Explanation 3 to Rule 6(1) of the CCR, which expands the definition of exempted services to include activities not defined as "service" under Section 65B(44).

Issue-wise Detailed Analysis

Issue 1: Existence of "Service" under Section 65B(44) of the Finance Act, 1994

Legal Framework and Precedents: Section 65B(44) defines service as "any activity carried out by a person for another for consideration." The Tribunal relied on precedents including Executive Engineering vs. CCE & ST, Jaipur and Centre for Engineering & Technology, Ranchi vs. Commissioner of Service Tax, Kolkata, which held that for a service to exist, there must be two distinct persons/entities-a service provider and a service recipient.

Court's Interpretation and Reasoning: The Tribunal observed that both the appellant and the Angul unit are part of the same legal entity, and therefore the requirement of "person for another" is not satisfied. The mere presence of different Central Excise and Service Tax registrations does not create distinct entities for the purpose of service tax. The Tribunal emphasized that the activity was an intra-entity transaction and thus no "service" as defined under Section 65B(44) was provided.

Key Evidence and Findings: It was undisputed that no actual payment was made between the units, and the accounting entries were notional. The appellant's job work was for its own unit, not for a separate person or entity.

Application of Law to Facts: Since the appellant and the Angul unit are the same legal entity, the job work activity does not qualify as a "service" under the Finance Act. The Tribunal held that the provisions of Section 65B(44) were not applicable.

Treatment of Competing Arguments: The Revenue argued that separate registrations and notional job work charges indicated distinct entities and services rendered. The Tribunal rejected this, relying on the principle that the existence of distinct legal entities is essential for service tax liability, not mere separate registrations or accounting entries.

Conclusion: No service was provided by the appellant to another person as per the legal definition.

Issue 2: Qualification of Job Work as "Exempted Service" under Rule 2(e) of CCR and Section 66D of Finance Act

Legal Framework and Precedents: Rule 2(e) of CCR defines "exempted services" as taxable services exempted wholly or partially or services on which no service tax is leviable under Section 66B. Section 66D lists negative list services, including job work amounting to manufacture, which are exempt from service tax.

Court's Interpretation and Reasoning: The Adjudicating Authority had treated the job work as an exempted service because it falls under the negative list. However, the Tribunal held that since the activity did not qualify as a "service" at all (Issue 1), it cannot be an exempted service. The Tribunal further clarified that Explanation 3 to Rule 6(1) of CCR, which expands exempted services to activities not defined as services, applies only to specific activities excluded from the definition of service, not to activities lacking the essential elements of service such as consideration or distinct recipient.

Key Evidence and Findings: The appellant's job work was manufacturing activity for its own unit, and no consideration was paid by a separate person.

Application of Law to Facts: Since the job work was not a service, it cannot be categorized as an exempted service under the CCR or Finance Act. The Tribunal relied on the recent decision in Reliance Jio Infocomm Ltd., which held that Explanation 3 applies only to eight specific activities excluded from the definition of service and not to activities without consideration or distinct recipient.

Treatment of Competing Arguments: The Revenue contended that Explanation 3 enlarges the scope of exempted services to include activities not defined as services, thus covering the appellant's job work. The Tribunal rejected this expansive interpretation, emphasizing the limited scope of Explanation 3.

Conclusion: The job work does not qualify as an exempted service for the purpose of Cenvat credit reversal.

Issue 3: Liability to Reverse Cenvat Credit under Rule 6(3)(ii) read with Rule 6(3A) of CCR

Legal Framework and Precedents: Rule 6(3)(ii) mandates reversal of Cenvat credit on inputs and input services used partly for exempted services. Rule 6(3A) provides the formula for such reversal.

Court's Interpretation and Reasoning: Since the Tribunal held that no exempted service was provided, the requirement to reverse Cenvat credit under these provisions does not arise. The appellant's use of common inputs/input services for manufacturing goods on job work basis for its own unit is not subject to reversal.

Key Evidence and Findings: The appellant's accounts showed notional job work charges but no actual service consideration. The Department's audit detected alleged short reversal, but the Tribunal found no legal basis for reversal.

Application of Law to Facts: Without an exempted service, the reversal provisions of Rule 6(3)(ii) and 6(3A) do not apply.

Treatment of Competing Arguments: The Revenue's contention that reversal was required due to exempted service provision was negated by the Tribunal's finding of no service.

Conclusion: No Cenvat credit reversal liability arises.

Issue 4: Invocation of Extended Period of Limitation

Legal Framework and Precedents: Extended limitation under service tax law applies if the Revenue proves suppression or fraud or that the facts were not known and could not have been known without audit/enquiry. Precedents include Savira Industries and Gannon Dunkerley & Co. Ltd.

Court's Interpretation and Reasoning: The Tribunal noted that the appellant had obtained permission under Rule 4(6) of CCR to clear goods directly from its premises, and the Department was aware of the job work arrangement. Therefore, the facts were not concealed and known to the Department. The extended limitation period could not be invoked merely because the irregularity was detected during audit.

Key Evidence and Findings: The Department's knowledge of job work arrangement and permission granted negated the claim of suppression.

Application of Law to Facts: The SCN issued beyond five years for the period up to May 2017 was barred by limitation. The extended period was not justified.

Treatment of Competing Arguments: The Revenue argued that the irregularity was detected only upon audit, justifying extended limitation. The Tribunal rejected this, emphasizing the Department's prior knowledge.

Conclusion: Extended period of limitation was wrongly invoked; SCN beyond five years is barred.

Issue 5: Scope and Application of Explanation 3 to Rule 6(1) of CCR

Legal Framework and Precedents: Explanation 3 to Rule 6(1) states that exempted services include activities not defined as "service" under Section 65B(44). The Tribunal relied on the recent decision in Reliance Jio Infocomm Ltd. which clarified that Explanation 3 applies only to eight specific activities excluded from the definition of service, which otherwise meet the statutory criteria of service.

Court's Interpretation and Reasoning: The Tribunal held that Explanation 3 does not apply to activities lacking the essential elements of service, such as consideration or distinct recipient. The appellant's job work, lacking these elements, is not covered by Explanation 3.

Key Evidence and Findings: Explanation 4 to Rule 6(1) requires valuation based on invoice/agreement value, implying the existence of consideration, which is absent in the appellant's case.

Application of Law to Facts: Explanation 3 cannot be invoked to treat the appellant's job work as exempted service.

Treatment of Competing Arguments: The Revenue's broad interpretation of Explanation 3 was rejected as inconsistent with the statutory scheme and judicial precedents.

Conclusion: Explanation 3 does not extend to the appellant's job work activity.

Significant Holdings

"...service means an activity carried out by a person for another for consideration. In this case, the appellant is an another unit of the appellant themselves for which they have provided the service. Therefore, it cannot be said that the appellant has provided service to another person."

"...the mandatory requirement for service tax that is of existence of two different entities is absolutely missing in the case in hand."

"...since there is no service provided by the appellant, therefore, it cannot be said that the appellant has provided any exempted service or taxable service."

"...the show cause notice issued beyond the period of five years is barred by limitation."

"...Explanation 3 to Rule 6(1) of CCR would apply only to such activities as are specifically excluded from the definition of service in section 65B(44) of the Finance Act and not to a case where the activity is not a service, either on account of there being no consideration or on the count of it being provided from one person to another."

"...the extended period of limitation is not invokable where the Department was aware of the job work arrangement."

The Tribunal conclusively held that the appellant did not provide any service as defined under the Finance Act, 1994, and therefore, the job work activity could not be treated as an exempted service. Consequently, the appellant was not liable to reverse Cenvat credit under Rule 6(3)(ii) and Rule 6(3A) of the CCR. Furthermore, the extended period of limitation for issuance of the SCN was not justified as the Department had prior knowledge of the arrangement. The SCN issued beyond five years was barred by limitation. Accordingly, the impugned order demanding proportionate reversal of Cenvat credit was set aside and the appeal was allowed with consequential relief.