TMI Blog2018 (12) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of accounts of the appellant. In such circumstances, the denial of cenvat credit for want of STTG Certificate is not sustainable. Non-availability of Service Tax Registration - Held that:- Hon’ble High Court of Karnataka in the case of Commissioner vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT], wherein the credit was denied with regard to input services on the ground that in the bills Service Tax Registration is not mentioned and that the bills are not in the prescribed format - credit cannot be denied. Denial on the ground that these are not input services and also for want of evidence as that of contract/ agreement, drawing/design etc. - Held that:- In the present case there is no allegation in the show cause noticed that services in question were not received or not utilized by the Noticee. There is not even the allegation that services were not received under the cover of invoice and that the Service Tax was not paid. The documents placed on record as also been duly acknowledged by the adjudicating authorities below are in the form of invoices. The perusal thereof makes it clear that the payments for receiving the services mentioned therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit of an amount of ₹ 39,55,335/- was held to have been correctly taken by the appellant. The said demand was dropped. However, the cenvat credit amounting to ₹ 9,06,665/- was alleged to have been wrongly availed. The proportionate interest at the appropriate rate and the penalty to the extent of 50% of the duty so determined was also imposed upon the appellant. Being aggrieved, appellant preferred an appeal before Commissioner (Appeals), who vide the order under challenge that is the one bearing No.27 dated 26.10.2017 held that out of the services appeared at Sl.No.13 to 47 of Annexure C of show cause notice cenvat credit in respect of services depicted at Sl.No.16 and 31 amounting to ₹ 8,689/- and depicted at Sl.No.37 to 47 amounting to ₹ 2,32,435/- was held to be not admissible to the appellant and rest was held admissible. The demand of interest was made proportionate to the demand confirmed and penalty was also reduced to ₹ 2,40,731/-. Still being aggrieved, the appeal before this Tribunal has been filed. 3. I have heard Ms. Priyanka Goel, ld. Advocate for the appellant and Ms. Tamanna Alam, ld. A.R. for the Department. 4. It is submitted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, it was very much in relation to the business activity of the appellant. The case of CCE, Bangalore vs. ITC reported in 2017 (6) TMI 151 (Tri.-Bang.) is relied upon for the purpose. Finally, it is submitted that show cause notice dated 18.09.2015 is barred by limitation. Since there is no allegation even in the show cause notice qua evasion of the duty on part of the appellant, the allegation of wrong availment of cenvat credit is apparently false. In view of the settled decisions, the Department was not entitled to invoke the extended period of limitation. No question of imposition of penalty arises. Order under challenge is prayed to be set aside. 7. Ld. DR while rebutting these arguments has placed emphasis on para 8.2 of the order under challenge, wherein the Commissioner (Appeal) has been clear enough to hold that the appellants have not provided sufficient evidence to prove their submissions. No details regarding the works as that of agreement/contract or / and design/drawing etc. have been submitted by the appellant. In absence whereof, the admissibility of cenvat credit (as confirmed by the Commissioner (Appeals) cannot be decided. It is impressed upon that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved and accounted for in the books of accounts of the receiver, he may allow the cenvat credit. The bare perusal makes it clear that even if the documents as mentioned in Rule 9 (1) are not available, the competent authority as mentioned has a discretion to still allow the credit. In the present case, the documents placed have all the above mentioned details except for Service Tax Registration. There is no allegation in the show cause notice that the services have not been received by the appellant nor that they have not been accounted in the books of accounts of the appellant. In such circumstances, the denial of cenvat credit for want of STTG Certificate is not sustainable. 12. This Tribunal in J.K. Cement (supra) case has held that when it is an admission that the appellant has availed taxable service of transporting imports by the railways and did suffer a Service Tax (the same is true for the present case as well) the Assistant Commissioner/Dy. Commissioner can allow the credit in terms of proviso to Rule 9. It was also appreciated in the said case that the said discretion has been given in order to facilitate the assessee who avails credit of input services to avail such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition after amendment w.e.f. 01.04.2011 are relevant for the purpose. input service means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation up to the place of removal; It is pertinent here to mention that aforesaid definition of input service did not contain any exclusion part. It remained in force till 31st day of March, 2011 prior to its substitution w.e.f. 01.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive portion of input service definition the activity of setting up, modernization, renovation or repair of a factory has been specifically specified in Rule 2 (l) of Cenvat Credit Rules, 2004. Hence denial of Cenvat credit in respect of petty works as proposed in impugned notice being contrary to Rule 2 (l) ibid is unsustainable. The conjoint reading of Section 65(25) (b) of Finance Act, 1994 defining commercial or industrial construction, Section 66 E.. about the services constituting declared services with that of the definition of input service in Rule 2 (l) of CCR, 2004 makes it clear that the conjoint reading of Section that the repairing and maintenance of civil constructions done by petty contractors, does not fall under the exclusion clause of Rule 2 (l) of Cenvat Credit Rules, 2004. 15. In the present case there is no allegation in the show cause noticed that services in question were not received or not utilized by the Noticee. There is not even the allegation that services were not received under the cover of invoice and that the Service Tax was not paid. The documents placed on record as also been duly acknowledged by the adjudicating authorities below are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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