TMI Blog2019 (2) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The appellant is engaged as manufacturer of cement at the Jojobera Cement Plant, Jamshedpur(JSR). The activity of packing of cement bags and transportation thereof was contracted to M/s. Suraj Associates Pvt. Ltd., JSR. The appellant as well as M/s. Suraj Associates Pvt. Ltd., JSR. were initially unaware of the fact that the activity contracted was liable for payment of service tax. The contract placed by the appellant on M/s. Suraj Associates Pvt. Ltd., JSR. did not specifically mention payment of service tax. The invoice raised by M/s. Suraj Associates Pvt. Ltd., JSR. for the activity carried out, without charging service tax was paid by the appellant. During the audit of the appellants A/cs., the Departmental Officers noticed that no service tax was being paid by M/s. Suraj Associates Pvt. Ltd., JSR for the activity carried out. The service provider subsequently discharged the service tax liability for the period 16.6.2005 to 31.3.2007. The service tax was paid under the category of Manpower Recruitment or Supply Agency Service as defined in Section 65(68) of Finance Act, 1994. The liability for service tax arose upon the amendment of the said definition w.e.f. 16.6.2005 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire service tax dues have been paid by the service provider by means of challans dated 01.05.2007, the interest payable on the service tax for delayed payment thereof has also been discharged in full. Consequently it is submitted that the CENVAT credit availed after payment of the service tax cannot be denied. c) The Learned Advocate further submitted that the service provider applied for registration with the jurisdictional authorities, soon after becoming aware of the service tax liability. However, since the registration number was issued for payment of service tax only 01.05.2007, it was mentioned in the challan under the column of registration number Apply For . He submitted that this cannot be taken to mean that the service provider was not registered with the Department. d) Finally he submitted that the appellant was entitled to such credit since the service tax amounts have been duly paid by the service provider and further that the supplementary invoice has been issued. e) He also relied on the following case laws to support his argument: (i) 2017(52) S.T.R. 164 (Tri.-Del) Diamond Cements -Vs-Commissioner of Central Excise, Bhopal (ii) 2018(8) G.S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a period of 14 days from the date of completion of such service or receipt of payment whichever is earlier. In the present two instances which are the subject matter of these two appeals, show cause notices were issued and were adjudicated under separate orders in which the Cenvat credit amounts were disallowed and demanded. When the issue was challenged before the Commissioner (Appeals), through separate orders both dated 3rd June, 2010, he upheld the orders of the original authority and disallowed the Cenvat credits to the extent of ₹ 11,24,127/- and ₹ 7,04,314/- with equal amount of penalty and payment of interest. Both the orders are challenged before the Tribunal mainly on the following grounds : (i) The service tax stands paid by the service provider and subsequently invoices have been issued which are clearly relatable to the original invoices on which the consideration for the service was recovered. Since the service tax amounts have been duly paid, the Cenvat credit thereof should be allowed to the appellant. (ii) The supplementary invoice raised by the service provider is on par with the original invoice as has been held by various judicial prono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. and Vision Tech, during the period from December, 2003 to December, 2004, while at that time, the service providers i.e. M/s. Mother Power House Pvt. Ltd. and Vision Tech. were not registered and the invoices issued by them did not mention any Service Tax registration no. That they subsequently took the service tax registration and paid Service Tax under supplementary invoice dated 14-9-2004, 23-12-2003 and 23-12-2004 is also not under dispute. There is also no dispute that input services have been used by the appellant for providing output services which are taxable. In view of this, it is not correct to deny the service tax credit on the basis of the above-mentioned supplementary invoices, just because at the time of receipt of the input services, the input service providers were not registered and had not mentioned Service Tax registration no. in the invoices. When the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of Service Tax on the input services even if paid subsequently under supplementary invoices, cannot be denied. The impugned order, therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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