TMI Blog2011 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... output service is factually incorrect as these rules had been amended w.e.f. 14-5-2003 by Notification No. 5/2003-S.T. so as to permit Cenvat credit even in respect of those input services which were not falling in the same category as that of output service. - Credit allowed for invoices issued on or after 14-5-2003.. - ST/268/2007 - ST/603/2011(PB) - Dated:- 23-11-2011 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri B.L. Narsimhan and Udayaditya Banerjee, Advocates, for the Appellant. Shri Amresh Jain, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts giving rise to this appeal are, in brief, as under. 1.1 The appellants provide telephone services chargeable to service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) the Cenvat credit demand of Rs. 1,93,76,003/- in respect of capital goods and input services received outside the registered premises was dropped; (b) The demand of Cenvat credit of Rs. 1,74,64,509/- availed on the basis of the invoices issued prior to 10-9-2004 and invoices not bearing any date was confirmed alongwith interest; and (c) penalty of Rs. 10,000/- was imposed on the appellant under Rule 15 (3) of the Cenvat Credit Rules, 2004. 1.2 Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 2.1 Shri B.L. Narsimhan, Advocate, the learned Counsel for the appellant, pleaded that, all the input service invoices bear the date and the department s allegation that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit Rules, 2002 has not been considered by the Commissioner at all, that the input services in respect of which Cenvat credit has been denied, had been received during the period after the amendment of Service Tax Credit Rules, 2002, that is during the period w.e.f. 14-5-2003, that since in respect of the services, in question, the appellant had earned the Cenvat credit in terms of Service Tax Credit Rules, 2002 during the period prior to 10-9-2004, in terms of the provisions of Rule 11(1) of Cenvat Credit Rules, 2004, the appellant would be entitled for the credit, as this sub-rule provides that any amount of credit earned by the manufacturer under Cenvat Credit Rules, 2002, as the same existed during the period prior to 10-9-2004 or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat credit, is that in the cases where the invoices bear the date, those invoices had been issued prior to 10-9-2004 and in terms of the provisions of Rule 3(1) of Cenvat Credit Rules, 2004, the Cenvat credit in respect of such invoices cannot be allowed. The department is also of the view that the benefit of the provisions of Rule 11(1) of Cenvat Credit Rules, 2004 would also not be available to the appellants in such cases, as during the period to 10-9-2004 service tax credit was available only under the provisions of Service Tax Credit Rules, 2002 under which the Cenvat credit was available only in respect of those input services which were of the same category as that of output service, while the input services, in question, fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2002, as the same existed during the period prior to 10/9/04, and which is lying unutilised. The Commissioner s findings that in view of the provisions of Rule 3(1) of Cenvat Credit Rules, 2004 the service tax credit cannot be allowed on the basis of the invoices issued prior to 10-9-2004 is incorrect as an assessee may have earned some service tax credit during period prior to 10-9-2004 under Service Tax Credit Rules, 2002, which may be lying unutilised as on 11-9-2004 and this credit has to be allowed under Rule 11(1) of Cenvat Credit Rules, 2002. 6.2 The Commissioner s finding that during the period prior to 10-9-2004, in terms of Service Tax Credit Rules, 2002, the Cenvat credit was available only in respect of those input servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me existed during the period w.e.f. 14-5-2003, in the case where the input and output service did not fall in the same category, the service tax credit was permissible on input services for which the invoice or bill or challan had been issued on or after 14-5-2003. Therefore, in this case, if the invoices/bills/challans had been issued on or after 14-5-2003, the Cenvat credit in respect of the same would be admissible and if appellant had not availed the same, at that time, the same would be admissible to the appellant in terms of transitional provisions of Rule 11(1) of Cenvat Credit Rules, 2004. 7. Since, the Commissioner in the impugned order has not considered the amendment to Service Tax Credit Rules, 2002 by Notification No. 5/2003- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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