TMI Blog2019 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing the unit without having registration, only on this ground credit cannot be denied. Denial of CENVAT credit on the ground that the ISD invoices were not contained the details as required under Rule 4A of service tax Rules, 1994 - HELD THAT:- The relevant sub Rule in case of ISD is sub Rule (2) of Rule 4A. According to which the ISD invoices should contain the information was provided under Clause 1 to 4 above. On the perusal of the ISD invoices, that along with its attachment found that all the four details as required under sub-Rule 2 Clause (i) to (iv) are clearly mentioned in the invoices and its attachment. The adjudicating authority has gone beyond the requirement mentioned in sub Rule (2) of Rule 4A and denied the credit on the ground that certain information as provided under Rule 4A(1) are not mention in the ISD invoices - on reading of Rule 4A, we found that the details required under Clause (i) to (iv) of sub-Rule 4A(1) is required only for an invoice issued by a service provider and not by the ISD, therefore, expecting information by the adjudicating authority is without authority of any legal provision, therefore, on this ground also the credit cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Centralized Registration 2. 19.01.2006 Application for Centralized Registration Rejected 3. 08.01.2006 SSC granted Centralized Registration 4. 08.08.2006 SSC applied for ISD registration with effect from 16 June 2005 5. May-June 2006 ISD shifted from Kolkata to Chennai 6. 04.04.2007 Chennai office registered as an ISD 7. 03.07.2008 Fresh ISD application filed in Kolkata 8. 08.07.2008 ISD Registration granted in Kolkata 3. The appellant during the period from September 2005 to March 2007 had availed cenvat credit on the strength of 23 invoices (11 + 12) issued by ISD in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 267 (Guj.) Dashion Ltd.-2016 (41) STR 884 (Guj.) Dahion Ltd.-2013 (288) ELT 291 (Tri.-Ahmd.) Adani Gas P. Limited-2017 (349) ELT (Tri.-Ahmd.) 6. As regard, the second objection namely that the invoices did not contain relevant particulars as mentioned in Rule 4A of Services Tax Rules, 1994. He submits that each ISD invoice was with respect to the distribution of number of input services procured by an ISD. The ISD had purchased number of input services under different invoices. On the face of the ISD invoices, the appellant, therefore, adopted a specific method to issue ISD invoices and in their respective columns, the appellant stated as per attachment to the invoice indicated the basis of allocation of the credit (quantum) and also details of various input invoices for which the credit was distributed in a tabular form including the name of the service provider and his registration number. He submits that the finding of the Learned Adjudicating Authority that invoices do not conform to requirement of Rule 4A of the Rules appears to be incorrect. 7. For the sake of easy reference, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces used in or in relation to all activities related to the functioning of the business. 9. He submits that all the input services which have been disputed by the adjudicating authority were used by the appellant in relation to its business and form part of the costs of final products and thus, is eligible to avail credit in respect of the same. He submits that in the first round before this Tribunal vide order dated 02.12.2008 and 16.03.2009 has held that defect in invoices is only a procedural lapse and remanded the matter for verification on other substantial compliances. The appellant having complied with all the requirements, there is no reason to deny the credit, therefore, he prays for allowing the appeals of the assessee. 10. Sh. K.Kinariwala Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He placed reliance on the judgments of the Single Bench in the case of Mangalore Refinery Petrochemicals Vs. C.C.E.,-Mangalore-2013 (30) STR 475 (Tri.- Bang.) and Market Creators Ltd. Vs. C.C.E., S.T.,Vadodara-2014 (36) S.T.R., 386 (Tri.-Ahmd.). He submits that since there is not statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions cited, has to be considered sympathetically. Further, it is also noticed that appellant has not got any extra benefit by doing this. In fact from the statement of Shri Chandresh C. Shah, as explained that above Cenvat credit available to them, 20% of service tax payable only was paid and balance was paid in cash. In fact, proper distribution would have enabled them to utilise full credit. It would show that the exercise is totally Revenue neutral and no loss has been caused to the Revenue (infact Revenue has gained). In the absence of any legal requirement to avail credit based on the services received during the relevant time and in the light of the decision cited by the learned counsel, the procedural irregularity has to be ignored and the demand confirmed has to be set-aside on this ground. In the result, demand for Cenvat credit of ₹ 1,07,07,142/- with interest and penalty equal to the same imposed under Section 11AC of Central Excise Act, 1944 are set-aside. 12. This above judgment has been upheld by the Hon ble Gujarat High Court in an appeal filed by the Revenue which was dismissed. It was reported as Commissioner of Central Excise Vs. Doshion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, shall 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 such 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. [Provided that in case the provider of taxable service is a banking company or a financial institution including a non-banking financial company providing service [to any person], an invoice, a bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered, and whether or not containing address of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that in case the input service distributor is an office of a banking company or a financial institution including a non-banking financial company providing service to any person an invoice, a bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered but containing other information in such documents as required under this sub-rule:] [Provided that in case the input service distributor is an office of a banking company or a financial company or any other body corporate or commercial concern, providing service to a customer, in relation to banking and other financial services, an invoice a nill or as the case may be challan shall include any document by whatever name called, whether or not serially numbered but containing other information in such documents as required under this sub-rule] 15. From the reading of the above Rule 4A, we find that the relevant sub Rule in case of ISD is sub Rule (2) of Rule 4A. According to which the ISD invoices should contain the information was provided under Clause 1 to 4 above. On the perusal of the ISD invoices, that along with its atta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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