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2016 (7) TMI 1208 - CESTAT BANGALORE

2016 (7) TMI 1208 - CESTAT BANGALORE - 2016 (45) S.T.R. 124 (Tri. - Bang.) - Cenvat Credit of service tax paid under reverse charge method - import of business auxiliary services from group compaines abroad and GTA services - the service tax was paid by the appellant through e-payments by the head office - debit notes - duty paying documents - Held that:- debit notes and e-payment challans are valid documents for claiming CENVAT credit on input services as per Sub-rule (1)(e) of Rule 9 which cle .....

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ment challans and disallow CENVAT credit taken on GTA services of ₹ 87,132/- The question of penalty does not arise as the appellants have not concealed any material facts from the Respondent. - Decided partly in favor of assessee. - E/2739/2011-SM - Final Order No. 20563 / 2016 - Dated:- 15-7-2016 - Shri S. S. Garg, Judicial Member Ms Preetha, Adv For the Appellant Mr. Pakshi Rajan, A.R. For the Respondent ORDER Per S. S. Garg The present appeal is directed against the order of the Commis .....

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ax at their Corporate Office in Gurgaon, Haryana. Prior to the merger of M/s Duckworth Flavours India Pvt Ltd with M/s Cargill India Pvt Ltd., M/s Cargill India Pvt Ltd was rendering certain services to Duckworth India Pvt Ltd and was charging service tax on the said services. Debit notes were issued by M/s Cargill India Pvt Ltd to M/s Duckworth India Pvt Ltd for charging such service charges as well as service tax. After the merger, the appellants were availing Management Consultant Services fr .....

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iming CENVAT credit of service tax amounting to ₹ 12,19,140/- on the strength of debit notes and to the extent of ₹ 5,12,010/- on the strength of e-payment challans issued by their Head-office. A show-cause notice was issued on the ground that these documents on the basis of which the appellant has taken credit are not proper documents for availing CENVAT credit as per Rule 9 of the CENVAT Credit Rules. The show-cause notice was culminated into order-in-original wherein the adjudicat .....

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submissions of the appellant that M/s Duckworth Flavours India Pvt Ltd got merged with M/s Cargill India Pvt Ltd in September 2008 with retrospective effect from 01.04.2007. As a result of it, for the entire period covered by show-cause notice, both the service provider and the service receiver were one and the same entity and the service tax was not payable at all in the first place. He further submitted that the show-cause notice proposed to deny CENVAT credit only on the ground that the debit .....

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t consultant services and GTA services on the ground of lack of nexus is wrong and beyond the scope of show-cause notice as well as beyond the well settled principles of law. He also submitted that in fact, management consultant services were received by the appellant from its parent company located out of India which did not have any office in India and therefore the appellant paid service tax under Section 66A of the Finance Act and availed CENVAT credit on the basis of e-payment challan which .....

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denied to the appellant on the basis of debit notes and e-payment challans is legally justified or not. A show-cause notice was issued to the appellant proposing to deny CENVAT Credit availed on the debit notes and e-payment challans on the ground that they are not the valid documents to avail CENVAT credit as per the provisions of CENVAT Credit Rules 2004. The eligibility of services as valid input services was never challenged in the show-cause notice and the findings of the Commissioner (Appe .....

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e learned counsel relied upon the decision of Commissioner of Service Tax Delhi Vs ITC Hotels Ltd [2012(27)STR-145 (Tri-Del)]. In the aforesaid case, the Tribunal relied upon the judgement of the Hon ble Supreme Court in the case of Marshall Sons & Co (India) Ltd Vs Income Tax Officer [AIR-1997-SC-173] wherein the Hon ble Supreme Court in para 14 has observed as under: "Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall .....

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ted to it - as has happened in this case - It should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be-remembered that before applying to the Court under Section 39(1) a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the Court may take some time; indeed, they are bound to take some time because several steps provided by Secti .....

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any) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the Courts have not only sanctioned the scheme in this case but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it could not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the Scheme. We are, therefo .....

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ers of the Court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January l, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v . Bank of Upper India Ltd. - AIR 1919 PC 9." Further, in view of the judgement cited (supra), the requirement to discharge service tax on the said transaction does not ari .....

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tax. Further, I also hold that out of the CENVAT credit pf ₹ 5,12,010, appellant paid ₹ 4,24,878/- to its group company situated outside India for management consultancy services. Appellant is entitled to take CENVAT credit under reverse charge mechanism under Section 66 A. The appellant paid service tax of ₹ 87,132/- on GTA services under reverse charge mechanism as per the Finance Act 1994 used for both inward as well as outward transportation of inputs and finished products, .....

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