TMI Blog2017 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be governed by the Explanation, as it is sought to be argued by the Revenue - the documents included in Clauses (e), (f) and (g) of Sub-Rule (1) of Rule 9 of 2004 CC Rules, would not be governed by the Explanation - the Assessee has correctly availed the CENVAT credit, based on the invoice / TR 6 challan - decided in favor of assessee. Whether the violation of Rule 4A of Service Tax Rules, 1994 entitles the respondent to avail credit under CCR, 2004? - Held that: - A bare perusal of the Rule would show that the obligation, in that behalf, essentially rests on the service provider. The Rule does not advert to any consequences, in case issuance of invoice, bill or challan is delayed. The period provided appears to be directory and not mandatory. Nothing to the contrary has been articulated by the Revenue - Rule 4A of the Service Tax Rules, 1994, inter alia, at the relevant time, required the provider of taxable service, to issue, not later than fourteen days from the date of provisioning of taxable service, an invoice, bill or challan. The details, which were to be provided in such an invoice, bill or challan, are also set out in the Rule - decided in favor of assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself with the Department. Accordingly, a case was registered, against it, by the concerned Authority. 4.5. The record book shows that once the service provider (M/s.Multicolour Projects (India) Ltd.,) had furnished an invoice, which included the service tax element, the Assessee availed of CENVAT credit to the extent of ₹ 53,52,737/- (inclusive of Educational Cess amounting to ₹ 1,55,903/-). 5. The Revenue discovered that the Assessee had availed of CENVAT credit when it conducted scrutiny of ER-1 monthly returns for the month of June, 2007. 5.1. Accordingly, a show cause notice dated 24.03.2008 (in short, 'the SCN'), was served on the Assessee. 5.2. By virtue of the said notice, the Assessee was called upon to show cause as to why wrong availment of CENVAT credit based on ineligible documents, amounting to ₹ 53,52,737/- ought not to be disallowed / recovered under Rule 14 of CENVAT Credit Rules, 2004 (in short, '2004 CC Rules') read with Section 11A of the Central Excise Act, 1944 (in short, 'the 1944 Act'). 5.3. Furthermore, since, the Assessee had utilised the CENVAT credit in payment of Excise Duty on its final product, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee under Rule 27 of Central Excise Rules, 2002. 7.9. Aggrieved by the same, the Assessee preferred an appeal to the Tribunal. The Tribunal disposed of the appeal along with the other appeal vide the impugned judgment. 8. It is, in this factual background, the instant appeals have been placed before us for adjudication. 9. On behalf of the Revenue, submissions were advanced by Ms.Hema Muralikrishnan, while on behalf of the Assessee, submissions were advanced by Ms.Elizabeth Seshadri. 10. We have perused the records and heard the learned counsel for the parties. 11. Having done so, according to us, the principal objection of the Revenue to the availment of CENVAT credit in both cases, centres around the interpretation, which is required to be placed on Rule 9(1)(b) of the 2004 CC Rules, in the context of the submission made on behalf of the Revenue that, not only did the Assessee avail of CENVAT credit, based on ineligible documents, but that it was done after offence cases were registered by the Department for infraction of the provision of the law. 11.1. In this connection, the Revenue sought to highlight that, in the matter involving receipt of manpower and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributor, as the case may be, on the basis of any of the following documents, namely :- (a) an invoice issued by - (i) a manufacturer for clearance of - (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; (ii) an importer; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002; (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of inputs or capital goods from his factory or depot or from the premises of his consignment agent or from any other premises from where the goods are sold, by or on his behalf, also qualify for availment of CENVAT credit. 13.4. This facility, under the Rule, it is made clear, extends to an invoice issued by the manufacturer for clearance of inputs or capital goods as well. [See Rule 9(1)(a)(i)(I) and (II)]. A similar provision qua invoices issued by the importer and first stage or a second stage dealer is also embedded in the very same Rule. [See Rule 9(1)(a)(ii),(iii) and (iv)]. 13.5. Clause (b) of Clause (1) to Rule 9 of the 2004 CC Rules enables availment of CENVAT credit against supplementary invoices, issued by a manufacturer or importer of inputs or capital goods. There is no reference, whatsoever, to input service provider. The Explanation which is appended to Clause (b) of Rule 9(1), clarifies what a supplementary invoice would include. The clarification adverts to the fact that the supplementary invoice would include a challan or any other similar document evidencing the payment of additional duty, leviable under Section 3 of the Customs Tariff Act. Clause (c) whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of hearing, no arguments were advanced based on Rule 4A of the Service Tax Rules, 1994. 15.4. Therefore, according to us, the question of law No.(iii) does not emanate either from Order-in-Original or from the order of the Tribunal and hence, strictly need not be answered. 15.5. Having said so, we notice that Rule 4A of the Service Tax Rules, 1994, inter alia, at the relevant time, required the provider of taxable service, to issue, not later than fourteen days from the date of provisioning of taxable service, an invoice, bill or challan. The details, which were to be provided in such an invoice, bill or challan, are also set out in the Rule. 15.6. A bare perusal of the Rule would show that the obligation, in that behalf, essentially rests on the service provider. The Rule does not advert to any consequences, in case issuance of invoice, bill or challan is delayed. The period provided appears to be directory and not mandatory. Nothing to the contrary has been articulated by the Revenue. 15.7. Furthermore, even in the grounds raised in the appeal, the Revenue, apart from articulating that the Tribunal failed to take into account the fact that the Assessee had claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
