TMI Blog2015 (2) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... no allegation that the inputs services are not relatable to the factory and were consumed in the factory. Following these decisions, we hold that credit cannot be denied for the procedural infraction that the addressee in the invoices was another office of the appellant. It is not the case of Revenue that the input services have not been used to provide the output services. It is also not the case of Revenue that the input services were consumed both in the Mafatlal House office and in the Worli office. The appellant's claim is that the invoices are normally addressed to the Worli office which is also their Financial Accounting office. Therefore we see no reason to disallow the credit. It was submitted by the learned Counsel during the hearing that he would not mind if this part of the matter is remitted to the Commissioner for factual verification. Accordingly we allow the CENVAT credit on principle, but remand the case to the Commissioner for verifying that the inputs services in respect of these invoices were actually used in the Mafatlal House office and not in the Worli office. The second matter to determined in this case is whether the appellant had provided taxable an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Address 1 Mafatlal House, Backbay Reclamation, Mumbai - 400020 2 No. 12, Dr. Annie Besant Road, Worli, Mumbai - 400 018 3 Maker Tower E- Wing, Cuffe Parade, Mumbai - 400 005. 4 Meher Chambers, R. Kamani Road, Ballard Estate, Mumbai - 400 001 3. During the period April- September, 2006 a demand of ₹ 1,92,10,120/- was raised for wrong availment CENVAT Credit while providing exempted services as well as taxable services and such availment is in violation of CENVAT Credit Rules, 2004. They did not maintain separate records for the exempted and taxable services in terms of Rule 6(1) of the CENVAT Credit Rules. Therefore, as per Rule 6(3)(e) they could utilise credit only to the extent not exceeding 20% of the amount of Service Tax payable on output services. They also availed CENVAT Credit of ₹ 31,25,737/- wrongly on input services on invoices raised on the registered unit at Worli whereas the credit was taken in another registered unit at Mafatlal House, Mumbai. Similarly for the October, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond case. 4. Heard both sides. 5. The learned Counsel for the appellant stated the following: (i) On the issue of availment of CENVAT credit in excess of the 20% limit, the learned Counsel stated that the appellants have not provided any exempted services during the impugned order. The applicants also explained that the exempted services shown in the ST-3 returns pertain to the period prior to 01.03.2006 when Notification N. 59/98 was in force. Since the payment thereof was received in the impugned period (April, 2006 onwards), the same has been shown in the exempted service column as no other appropriate column was available in the ST-3 Returns. According to the learned Counsel, the Commissioner has not disputed this factual submission of the appellant and the only allegation in the show-cause notice for the period April, 2006 to September, 2006 is that the appellant had provided exempted as well as taxable services. And the learned Commissioner confirmed the demand on the ground that the representational services provided by Chartered Accountants under Notification NO. 25/2006 and services provided to SEZS units under Notification No. 4/2004 are unconditionally exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, the appellants had made payment in cash which is much more than the amount sought to be recovered in the present case as mentioned at page 21 of Appeal Memo; therefore, the demand is liable to be set aside. He relied on Federal Express Corporation Vs. CST - 2014 (36) S.T.R. 375 (Tri. - Mumbai) -. (v) The reliance by the learned Special Counsel on the decision of the Hon'ble Supreme Court in the case of Orient Weaving Mills (P) Ltd. Vs. UOI 1978 (2) ELT J 311(SC) is not applicable because there is no provision in Service Tax Law unlike as in Section 38 of Central Excise Act which provides that notification shall have effect as if enacted in this Act . He relied on Hotel Balaji and Others Etc. Vs. State of Andhra Pradesh - 1993 Supp. 4 SCC 536. (vi) As regards the invoices in the name of Worli Office, the credit has been taken only at Mafatlal House Office and they have produced a CA certificate to this effect. And the same being a curable defect, therefore CENVAT credit cannot be denied on procedural grounds because the service was received by Mafatlal Office. He relied on various decisions such as:- (a) CCE, Vapi Vs. DNH Spinners - 2009 (16) STR 418 (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on 05.03.2007 after vigorous follow up by the department. Further the appellant never revealed that they were availing credit on inputs used for taxable and exempted services. In any case for the period October, 2006 to March, 2007, the return was filed on 25.04.2007 and the demand raised on 23.04.2008 i.e. well within the period of one year. 7. We have gone through the rival contentions. There are essentially two issues to be resolved. The first issue is whether the credit of input Service Tax is available on basis of invoices which were addressed to the Worli office but the credit thereof was availed in the Mafatlal House office. We find that in similar cases, credit has been allowed. In the case of Commissioner Vs. DNH Spinners - 2009 (16) STR 418 (Tri.-Ahmd.) the Tribunal held that credit cannot be denied on technical grounds that the documents were not in the name of assessee's factor at Silvassa but the same were issued in the name of the Head office of the assessee situated at Mumbai. In the case of Modern Petrofils Vs. CCE - 2010 (20) STR 627 (Tri.Ahmd) it was held that credit may not be denied because the invoices were in the name of the Head office instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable services falling under sub-clauses (s), (t) and (u) of clause (105) of section 65 of the Finance Act, provided or to be provided by a practicing chartered accountant, a practicing cost accountant and a practicing company secretary respectively, in his professional capacity, to a client, relating to representing the client before any statutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice, from the whole of service tax leviable thereon under section 66 of the said Finance Act. It is seen that Notification No. 25/2006 provides exemption to a client only in respect of services relating to representing the client before any statutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice. The appellant's contention is that the invoices raised by the appellant to their clients reflect composite services. By way of illustration, learned Counsel showed some invoices, for example invoice No. TAX/000911/2006-2007 issued to Abacus International PTE Ltd. Some details of this Invoice and other invoices are extracted below Invoice No. TAX/000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Assessing Officer under Section 143(3) and preparation of rectification letter to be filed with the Assessing Officer, preparation of responses to the Assessing Officer and Tax Recovery Officer in the case of Mr. Giovanni Toricelli for assessment year 2003-04, professional services rendered in respect of Sales Tax Act and other Allied Acts during the year 1 st April, 2006 to 31 st March, 2007. 8.2 Essentially the argument of the appellant is that the invoices do not represent only the fees relating to representing the client before a statutory authority but also include fees for other services provided under the invoices as shown for some invoices above by way of illustration. This contention is acceptable because it does not appear that activities such as review of an Order' or professional services rendered in respect of Sales Tax Act may not be covered under exemption Notification as they do not relate to representing the client before any statutory authority in the course of proceedings initiated under any law by way of issue of notice . We find that the fees relating to activities covered by exemption under Notification No. 25/2006 are not segregated from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any service provider for consumption of the services within such Special Economic Zone, from the whole of service tax leviable thereon under section 66 of the said Act, subject to the following conditions, namely:- (i) the developer has been approved by the Board of Approvals to develop, operate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) The developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services. We note that one of the conditions of the Notification is that the developers or units of SEZ shall maintain proper account of receipt and utilisation of the said taxable service. We appreciate the appellant's contention that it is not in their control to ensure that the service receiver maintains proper records. Hence, they paid Service Tax on such services correctly. Reliance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts (supra) that exemption by means of notification issued under Rule 8 does not take away the levy or have the effect of erasing levy of duty. The object of the exemption notification is to forgo due duty and confer certain benefits upon the manufacturer. Further, in a recent judgment in the case of Reliance Industries Ltd. (supra), the Hon'ble Apex Court held that the above view of this Court can be traced to the maxim which sanctions the non-observance of statutory provision Cuilibeticet remunitare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Thus it is clear that under Service Tax law, the assessee is not prohibited from paying tax on goods exempted under a notification. Having held so, we find that the appellant had not provided exempted and taxable services in terms of Rule 6(2) of the CENVAT Credit Rules and therefore the restriction of availment of CENVAT Credit up to 20% of the value of taxable services provided would not apply. 9. Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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