Issue of SCN for non submission of CENVAT credit return as per S. 9(1) and non submission of Form 3, Service Tax

[RAJAGOPALAN R]

Sir,

We received SCN stating that CENVAT credit return as per Sect. 9(1) for the period from 1.10.2004 to 31.3.2005 was not submitted by us in addition to Form 3. In the service tax book it is mentioned that the said form was not yet prescribed in the Cenvat Credit Rule, 2004. Kindly inform any form is there. If so kindly mail the same to me at delhiraja@hotmail.com.

Posts / Replies

[Rajagopalan Ranganathan]

Proceedings under Section 9 (1)of Central excise Act 1944 can be launched only in the Court of Law. Departmental Officers can file a complaint under Section 9 (1) in the Court designated to try Economic offences. Departmental quasi-judicial officers cannot take action under Section 9(1). If you are a manufacturer you have file a monthly return under rule 9 (7) of cenvat credit rules. If you are a service provider you have to file half yearly return under rule 9 (9) of cenvat credit rules. I do not find any return with the name form 3. Since Cenvat credit rules were notified with effect from 10.9.2004 vide notification No.23/2004-CE (NT) dates 10.9.2004, you had to file your first return on 10.11.2004 if you are a manufacturer or on 10.4.2005 if you are a service provider. Even if it is presumed Form 3 was prescribed under erstwhile service tax credit rules, it ceases to have the effect from 10.9.2004. The format for monthly return is merged with E.R.1 return for manufacturers of excisable goods.

[Rama Krishana]

A wrong reference to the provision leads to wrong conclusions. In the query a reference is made to section 9(1) where as the recovery of Cenvat Credit for non filing to return is being made with reference to Rule 9 of the Cenvat Credit Rules, 2004. Therefore, the provisions of Rule 9 of the Cenvat Credit Rules, 2004 is to be visited instead of Section 9 of the central excise act, 1944. However, since there was no specific form was prescribed under the rule 9 for furnishing of details of cenvat credit separately, the ground on which demand is being raised is factually incorrect. I hope you would win the case in due course.