TMI Blog2019 (6) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ions for availing the credit as provided in Rule 3(1). Rule 3(1) provides no condition regarding registration or regarding filing Returns to avail credit. Principles of natural justice - HELD THAT:- The assessee has enclosed with the Appeal Memorandum copy of their ledger account (Service Tax input account) for the period from April 2012 up to March 2016 in which he has given all the details regarding the availment of CENVAT credit and has also maintained proper books of accounts which have not been considered by both the authorities below - Further, in the Ground of Appeal, the appellant has stated that the detailed computation regarding the payment of Service Tax for both the years were given before both the authorities below but both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of M/s. Nitesh Estates who provided various taxable services but have not discharged their tax liability. Search were conducted at the premises of M/s. Somrest Infra Projects Pvt. Ltd., and M/s. Southern Hills Developers and certain documents were recovered. The documents revealed that the appellant had provided service to M/s. Nitesh Group of Companies. During the period 2012-13, the value declared in ST-3 Returns was ₹ 74,00,000/- and the corresponding Service Tax is ₹ 9,14,640/- and whereas the value as per IT Returns was ₹ 1,14,00,000/- but the same as per Form 26AS was ₹ 83,14,640/- and the Service Tax liability works out to ₹ 14,09,940/- resulting in short payment of ₹ 4,94,400/-. Similarly for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the documentary evidences on record. He further submitted that the only condition for availing credit is that the assessee must be a manufacturer or a service provider as per Rule 3(1) and there is no condition either regarding registration or regarding filing Returns to avail credit. He further submitted that the impugned order denying credit holding that the said credit is not reflected in the ST-3 Returns is opposed CCR, 2004. He further submitted that it is a settled position of law that registration is not a pre-condition for availing credit. For this submission, he relied upon the case of mportal India Wireless Solution Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Notification specifically states that the provisions therein would have a retrospective effect. Since the credit was availed on an invoice dated prior to the Notification the said amendment would not apply and the impugned order relying on the time limit to deny the credit is therefore bad in law. He further submitted that the amendment vide Notification No. 21/2014-CE dated 11.07.2014 (w.e.f. 01.09.2014) is only prospective and cannot be retrospective in nature. For this submission, he relied upon the decision of the Hon ble Apex court in Eicher Motors v. CCE, 106 ELT 3 (SC) wherein it has been held that when the input services were received with duty paying documents before the amendment date, right to avail and utilize credit thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCR, 2004. Rule 3(1) which speaks of availment of credit does not lay down any condition that availment is subject to taking the credit in ST-3 Returns or ER-1 Returns. In fact, there is no condition laid down in the entire CCR, 2004 that availment of credit is subject to disclosure in ST-3 Returns but this submission has also not been considered by the Commissioner (Appeals) while passing the impugned order. He further submitted that when registration is not the criteria to avail credit as per the decision of the Hon ble Karnataka High Court in the case of mportal Wireless Solutions (supra) then filing Returns would definitely not be held as benchmark to avail credit since Returns can be filed only after securing registration. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE v. Adecco Flexione Workforcce Solutions Ltd., 2012 (26) STR 3 (Kar.) and CST v. Master Kleen, 2012 (25) STR 439 (kar.). 5. On the other hand, Learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that denial of CENVAT credit of ₹ 8,03,400/- availed by the appellant on 13.03.2014 was denied only on the ground that the same was availed after six months from the date of the document. Further, I find that the amendment in Rule 4(7) of CCR, 2004 by Notification No. 21/2014-CE dated 11.07.2014 is applicable prospectively and not retrospectively as held by the Tribunal in the case of Voss Exotech Automotive (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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