TMI Blog2018 (7) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... aid the service tax on entire invoice value - The credit of full service tax paid by the service provider in respect of services provided would be available even if amount payable to the service provider has been withheld so long as the service tax paid by the service provider has not changed. Therefore, the credit is admissible to the respondent. Appeal dismissed - decided against Revenue. - Excise Appeal No. 51137 of 2018 - A/52278/2018-SM[BR] - Dated:- 20-6-2018 - Shri Ajay Sharma, Member (Judicial) Shri H C Saini, AR for the Appellants Shri Shantanu Kumar, Advocate for the Respondent ORDER Per Shri Ajay Sharma : The instant appeal has been filed by the department against the impugned order dated 25.1.2018 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and 24.7.2014 respectively were issued to the respondents seeking the demand of proportionate cenvat credit of ₹ 51,78155/- pertaining to the amount retained from the invoices. It was alleged in these show cause notices that since the respondents did not pay the full value of input services but retained the amount of ₹ 3,89,34,46/- within a period of six months from the date of invoices, the disputed credit is not admissible to the respondent. 4. The adjudicating authority vide orders-in-original dated 18.12.2014 and 22.9.2015 respectively, confirmed the demand of disputed credit availed by the respondents and ordered for recovery of the same along with interest under Rule 14 of Cenvat Credit Rules, 2004 read with section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit in respect of input service shall be allowed, on or after the day on which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in Rule 9 Circular No. 122/3/2010-ST dated 30.4.2010 3. As per sub-rule (7) of Rule 4 of the CENVAT Credit Rules, 2004. Credit in respect of input service shall be allowed, on or after the day on which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in Rule 9 The credit in respect of input service shall be allowed, on or after the day on which payment is made of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons. 5. Matter has been examined and clarification in respect of each of the above mentioned issues is as under:- (a) When the substantive law i.e. section 67 of the Finance Act, 1994 treats such book adjustments etc. as deemed payment, there is no reason for denying such extended meaning to the word payment for availment of credit. As far as the provisions of Rule 4(7) are concerned, it only provides that the Cenvat credit shall be allowed, on or after the date on which payment is made of the value of the input service and of service tax. The form of payment is not indicated in the same and the rule does not place restriction on payment through debit in the books of accounts. Therefore, if the service charges as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the invoice, bill or challan, as the case may be, referred in Rule 9 of the CCR, 2004. He further submitted that provisions of Rule 4(7) ibid are unambiguous and are mandatory to be followed as the word shall has been used and not will . Unless payment of both values as well as service tax has been made by the service recipient within three months of the date of the invoice etc., he is required to reverse the credit so taken on input service. He further submitted that it is admitted fact that the service receiver had not made full payment of taxable amount even after expiry of three months of the date of invoice / bill/Challan as the case may be referred in Rule 9 of CCR, 2004. However, the appellate authority while allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the demand after relying upon the Circular dated 30.4.2010. 10. There is no dispute regarding the fact that though the respondent retained a part of the value of services, however, no part of the service tax reflected in the invoices was ever retained by the Respondent. Respondent has paid the service tax on entire invoice value, as evident from para 5.1 of the impugned order. The credit of full service tax paid by the service provider in respect of services provided would be available even if amount payable to the service provider has been withheld so long as the service tax paid by the service provider has not changed. Therefore, the credit is admissible to the respondent. 11. In view of the fact and decisions mentioned above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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