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TMI Blog2017 (1) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 2,34,06,813/- and non-paid service tax of Rs. 2,22,34,462/- was issued to the appellants, which proposals were confirmed vide OIO dated 29-1-2010. Hence Appeal No. ST/263/2011. 2. Two other notices, one dated 22-10-2010 for period April, 2009 to March, 2010, inter alia, proposing demand of alleged irregularly availed credit amount of Rs. 77,79,610/- and non-paid service tax of Rs. 50,20,514/- and another notice dated 14-10-2011, for period April, 2010 to March, 2011, inter alia, proposing demand of alleged irregularly credit amount of Rs. 98,26,915/- and non-paid service tax of Rs. 99,87,498/- were also issued to the appellants, which proposals were confirmed vide common OIO dated 31-5-2013. Hence Appeal No. ST/27587/2013. 3. During the hearing, Shri S.S. Gupta, ld. Counsel for the appellants, made the following main arguments : All the airlines have given pre-printed Air Way Bill (AWB) to the appellant for the purpose of issuing the same against the booking of cargo for the said airlines. The AWB contains all the details as required under Rule 4A of Service Tax Rules. On confirmation of terms and conditions of the carriage and the freight charges being levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the service tax remitted to the airlines. It is submitted that payment made towards taxes amount to reversal of credit taken. In the Stay Order No. 1263/2012, dated 24-7-2012, the Tribunal has given specific finding that the appellant has paid higher service tax than the credit taken. Their records for the period 2011-2012 were verified in audit conducted by the Department and found that they were eligible for the credit. They made an RTI application dated 15-12-2014 requesting for file noting with respect to verification done at their premises in the year 2012. Copy of RTI order received conveyed following noting made by department after verification : "verification was ordered and the scrutiny group superintendent has verified the invoices on 14-12-2014 and has brought out that credit availed for the subsequent period i.e. April, 2011 to March, 2012 is regular. In view of this no periodical SCN for the period April, 2011 to March, 2012 is warranted." This shows that the department has also found that credit taken by them is regular and accordingly no periodical show cause notices were issued thereafter. The appellant took centralised registration in Mumbai in Jan., 2012, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls (AWB). It is not the case of the Department that the said Cargo Sales Report shows a higher or lower credit amount different from the total of the AWBs referred to therein. It is also not the case of the Department that the appellants are availing Cenvat credit of service tax not suffered by them. The only ground for denial of such credit is the appellant's availment thereof based on the Cargo Sales Report. Nevertheless, when the relevant AWBs have also been made available to the Department, the appellants taking credit on their consolidation and summarization in a fortnightly Cargo Sales Report is therefore, to be considered as their having taken credit on the AWBs themselves. It has to be also kept in mind that the appellants conduct their business in a unique niche of the airline industry, that of booking cargo space on behalf of airlines, and as such the universal practices in such areas should be properly understood and appreciated before issuing demands of this nature. So long as the primary and essential requirements of the procedural Rule have been satisfied, benefit should not be denied on insubstantial grounds. In fact, even the said Rule 9, so vigorously relied by low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that optional exemption not availed in order to take Cenvat/Modvat credit and such credit subsequently held to be wrongly availed and when the amount of Cenvat/Modvat credit wrongly availed is exactly equivalent to the amount of Excise duty paid by not availing the exemption, the consequences is revenue neutral and the demand of such wrong availment of credit rightly quashed by the Tribunal. In the present case, the appellant had not availed the EPCG scheme and the exact amount utilized in the Cenvat account and there is no dispute the appellants are eligible to avail Cenvat credit as per Notification No. 97/2004. Thus, the decision of the Hon'ble Supreme Court in the case of Narmada Chematur Pharmaceuticals Ltd. (supra) would be applicable in the present case 10. In Him Teknoforge Ltd. v. CCE., Chandigarh [2014 (312) E.L.T. 721 (Tri.-Del.)], Tribunal held as follows : The appellant is engaged in the manufacture of rough forging under Chapter 73 of the Schedule to the Central Excise Tariff Act, 1985. It is seen that the said goods were cleared by them to ordnance factory under the cover of Central Excise invoices. The said goods were not found to be as per technical sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Photo Pvt. Ltd. v. CCE, Order No. A/1496/2009/WZB/AHD [2009 (247) 730 (Tribunal)] and Tribunal's decision in the case of BAPL Industries Ltd. v. CCE, Coimbatore reported in 2006 (198) E.L.T. 587. The ratio of all above decisions is to the effect that as the provisions of Rule 16 allows the assessee to avail the credit of duty paid on the goods cleared by them, by treating the same as inputs the provisions of Rule 7, which specify the documents for the purpose of availment of credit in respect of inputs, would not apply to the provisions of Rule 16. The said rule being a special provision enacted for receiving back the rejected final product, the availment of credit on the basis of Central Excise invoices issued by the manufacturer would be sufficient. Even in the present case, I find that there is no dispute about the receipt of the duty paid rejected final product. The technical objection that the credit stands availed on the basis of vouchers issued by ordnance factory (though the appellant also claimed the production of Central Excise invoices, which is not disputed by the Revenue) cannot be upheld inasmuch as the legislative intent as reflected in the said rule allows an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the input service provider. Rule 4A of the Service Tax Rules, 1994 regulates issuance of invoice/bill or challan by the service provider. The said rule reads as : Rule 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan - (1) Every person providing taxable service shall not later than thirty 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 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 taxable service provided or agreed 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 address of the person receiving taxable service : (iii) Description and value of taxable service provided or agreed to be provided; and (iv) The service tax payable thereon : ..... X X X X Extracts X X X X X X X X Extracts X X X X
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