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TMI Blog2016 (1) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Rule 15(3) of the Cenvat Credit Rules, 2004(CCR). 2. Shri Ravi Raghavan (Advocate), along with Miss S.Chatterjee (Advocate), appeared for personal hearing on behalf of the appellant and submitted that the period of demand is April, 2007 to September, 2011. That out of the total demand Rs. 30,69,98,748/- pertain to Cenvat Credit taken by the appellant on the capital goods installed in the state of Jammu & Kashmir, which is proposed to be denied in view of Rule 6(4) of CCR. That Rs. 11,52,24,984/- pertain to credit taken on the input services availed in the state of Jammu & Kashmir which is proposed to be denied under Rule 6(1) of the CCR. That a credit of Rs. 16,00,139/- is proposed to be denied, with respect to the credit taken on the basis of documents issued by the Banks, under Rule 9 of the CCR. That remaining credit of Rs. 56,66,711/- is with respect to Service Tax paid on managerial services availed on the basis of duty paying documents which according to Revenue are improper documents under Rule 9 of the CCR. 2.1 It is the case of the learned Advocate - (i) That demand for the period 01.04.2007 to 31.03.2011 (amounting to Rs. 36,38,996/-) is time barred as the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emical Industries Ltd. [2011(274) ELT 97 (Tri-Del.)] (b) CCE, Indore v. Grasim Industries Ltd. [2011(24) STR 691 (Tri.Del.)] (c) Essar Oil Ltd. v. CCE, Rajkot [2011 (303) ELT 255 (Tri-Ahmd.)] (d) JSW Steel Ltd. v. CCE, Salem [2012 (277) ELT 189 (Tri-Chennai)] (e) Pharmalab Process Equipments Pvt.Ltd. [2009 (242) ELT 467(Tri-Ahmd.)] (f) CCE & Cus, Daman v. Jalaram Plastic Pack [2014(34) STR 66(Tri-Ahmd.)] (g) Manipal Advertising Services Pvt.Ltd. v. CCE, Mangalore [2010 (19) STR 506 (Tri-Bangalore)] 3. Shri S.Sharma, ld.Commissioner(AR) appearing on behalf of the Revenue argued that as per Section 64(1) of the Finance Act, 1994 Service Tax provisions are not applicable to the state of Jammu & Kashmir. That no extra service tax specifically has been paid by the appellant for providing roaming services in the state of Jammu & Kashmir and roaming charges collected from the customers are same everywhere in India. That no such Service Tax paid on roaming charges in the state of Jammu & Kashmir has been separately indicated either in the ST-3 returns filed by the appellant or in the invoices charged to the customers. That centralized regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng taxable on roaming facilities, provided by the appellant from Bhubaneswar, on which service tax is paid. It is thus the case of the appellant that provisions of Rule 6(4) of the Cenvat Credit Rules 2004(CCR) are not applicable and Cenvat Credit was correctly taken. On the other hand Revenue is of the opinion that no taxable service was provided by the appellant in the state of Jammu & Kashmir and roaming charges, recovered by the appellant will be considered to be services provided at Bhubaneswar as per the CBEC Circulars relied upon by the appellant. It is also the case of the Revenue that centralized registration obtained by the appellant is only a procedure to ease accounting and payment of service tax when service provider in the state of Jammu & Kashmir remains at their Jammu Branch office who is providing service in non-taxable area/service tax exempted area. 5.1 It is observed that Section 69(1) of the Finance Act, 1994 every person liable to pay service tax has to seek registration. Further as per Rule 4(2) of the Service Tax Rules, 1994, where a person has centralized billing/accounting system then centralized registration can be obtained. Obtaining centralized registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellant. 7. So far as Cenvat Credit of Rs. 72,66,850/-, mentioned at above para 4(iii) is concerned, appellant has argued that Cenvat Credit has been properly taken as all the details presented in Rule 4(A) of Service Tax Rules, 1944 are satisfied. Learned Advocate for the appellant during the course of hearing has also relied upon several case laws on this issue. Rule 4A(1) of the Service Tax Rules, 1994 is relevant and is reproduced below along with its provisos:- "[Taxable service to be provided or credit to be distributed on invoice, bill or challan. 4A.(1) Every person providing taxable service [, not later than fourteen days from the date of [completion] of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier,] shall issue an invoice, a bill or as the case may be, a challan signed by such person or a person authorized by him in respect of [such] taxable service provided or to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely:- (i) the name, address and the registration number of such person; (ii) the name and addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Bhubaneswar in 2007. The notice is a corporate entity and is supposed to be well aware of the provisions of Service Tax statute. Despite this fact, it continuously availed the above impugned credit in violation of the provisions of Rule, 1(2), 3, 6 & 9 of the CCR, 04 which indicates its willful intention for unjust financial benefits. These facts would have gone unnoticed had the departmental officers unearthed the same. Therefore, I find that the above conduct of the notice contains ingredients of suppression of facts and willful contravention of the above provisions of law with an intention to evade payment of Service Tax. Accordingly, I hold that the extended period of limitation under proviso to Section 73(1) of the Act is rightly invokable in this case for effecting recovery of the irregularity availed Cenvat Credit of Rs. 42,94,90,582/-. I also hold that apart from recovery of the above credit under Rule 14 of the CCR, 04 along with interest, the notice is liable for penalty under Rule 15 of the CCR, 04 read with Section 78 of the Act." 8.1 On the other hand appellant has argued that extended period of 5 years, under proviso to Section 73(1) of the Finance Act, 1994, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services installed/availed in the state of Jammu & Kashmir has been depicted. Appellant never approached the department at any stage that any ambiguity or confusion exists in taking of credit with respect to capital goods/services installed availed in the state of Jammu & Kashmir. Further it is observed from the relied upon case law of Padmini Products Ltd. v. CCE (supra) that each case has to be examined on facts to determine whether extended period can be made applicable. On the basis of records and the facts of the present case we agree with the findings of the Adjudicating authority that extended period is applicable and penalty, equivalent to the inadmissible credit, imposed upon the appellant is justified. Further we also hold that appellant has no reasonable cause for considering that Cenvat Credit on capital goods/services installed/availed in the non-taxable state of Jammu & Kashmir, is admissible. Accordingly, it is not a case for allowing the benefit of Section 80 of the Finance Act, 1994 to the appellant. 9. In view of the above observations appeal filed by the appellant, with respect to admissibility of Cenvat Credit on capital goods and service tax, availed in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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