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TMI Blog2019 (10) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... taken cenvat credit of Rs. 5,07,88,431/- in their original ST-3 Returns for the period ending September 2014 and march 2015 which were filed on 22.08.2015. The invoices pertaining to the cenvat credit availed were scrutinized and it was found that the appellant has filed revised returns. On examination of those returns variations in the cenvat credit figures were observed. Therefore, the ledger account was examined and on scrutinized of these revised returns vis-a-vis the account of cenvat credit, it was found that the appellant has shown availment of total cenvat credit of Rs. 4,19,38,611/- only, as against the originally taken cenvat credit of Rs. 5,07,88,431/- and the cenvat credit received later on carried entries most of which were different from the original entries in as much as that out of cenvat credit of Rs. 4,19,38,611/-, Cenvat credit of Rs. 3,76,06,728/- was on the strength of invoices which were not appearing in the earlier obtained cenvat credit account. These newly incorporated invoices were found to have been entered in Cenvat Credit account on different dates during the financial year 2014-2015. Since, all the input service cenvat credit invoices pertaining to ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me having apprehensions that the same will be denied by the department. Since, the change in figures of cenvat credit in revised ST-3 return does not itself show that the appellant has omitted cenvat credit taken earlier and added credit of other invoices and fact of reversing credits could be detected only when revised cenvat credit accounts were obtained, it proves that this act of wrong availment was with the intent of consequential evasion of payment of service tax. 3. Further, the appellant has also availed cenvat Credit of Rs. 14,83,200/- in respect of invoice No. 6 dated 28.02.2015 issued by M/s Augment Enterprises Pvt. Ltd. in respect of input service and had shown availment of such cenvat credit in their original ST-3 return for the period ending March, 2015. Further, on scrutiny of revised cenvat credit account subsequently, it was found that the credit to this extent has been omitted by back dating. This shows that the appellant had taken the said credit of Rs. 14,83,200/- without actual receipt of input service and later omitted the same. This act of wrong availment was with the intent of consequential evasion of payment of service tax and thus, penalty is leviable on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Rule 9(2) of Cenvat Credit Rules readwith Rule 4A(1) of Rules. Therefore, on these charges, cenvat credit sought to be denied to the appellant and show cause notice was issued on 11.05.2016. The matter was adjudicated, cenvat credit was denied to the appellant alongwith interest and penalties. Against the said order, the appellant is before us. 5. Ld. Counsel appearing on behalf of the appellant submits that the appellant is engaged in the business of collection of subscription and carriage income from broadcaster and channels. The appellant company is managing the staff for the collection of subscription on behalf of the broadcaster and carriage on behalf of channels. The appellant company have deputed various distributors for the collection of the same and they used to pay the distributors the commission for the collection. It is his contention that in this case M/s Fast Way is to raise the billing on appellant company for the placement of channel in its plateform & in turn has to make the payment to various intermediaries of broadcasters. In order to save the duplicity of efforts, it has been mutually decided by the parties that instead of intermediaries raise the bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion income it is the natural for the appellant company to either receive the bill from Fastway or the intermediaries a representing the broadcasters. Initially, the appellant company was received billing from Fastway considering the fact the intermediaries representing the broadcasters will issue the bill to Fastway. But, eventually, it was settled to not to disturb the trade practice & intermediaries should raise the direct billing on appellant company. Due to that reason, the appellant company has to revise ST-3 returns which conclusively generated surplus revenue for the service tax department. Therefore, the appellant has not taken the cenvat credit on raising invoices or on the invoices for which they have not received services. It is not disputed the fact that the appellant has not received services and have not paid service tax thereof. In that circumstances, cenvat credit cannot be denied to the appellant. 6. With regard to availment of cenvat credit of Rs. 23,54,179/- on the strength of invoices issued by M/s Surya Cables. It is alleged that the registration certificate is in the name of Shri Sarabjit Singh, Proprietor of M/s Surya Cable, therefore, cenvat credit sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, we hold that the appellant has correctly availed the cenvat credit on the strength of revised ST-3 returns for the period ending Sept. 2014 and March 2015, therefore, no demand of service tax can be raised against the appellant. 11. We further take a note of the fact that the cenvat credit sought to be denied on the ground that the certificate does not have the name of the service provider. In fact, the service provider is M/s Surya Cables through its proprietor and availment of services and payment thereof is not in dispute, therefore, the cenvat credit cannot be denied to the appellant. Accordingly, the denial of Cenvat Credit of Rs. 23,54,179/- is set-aside. 12. Further, the cenvat credit sought to be denied on the ground that M/s North India Distribution is having these addresses in the invoices other than the address given in the registration certificate, the same cannot be the reason to deny cenvat credit when it is a fact on record the appellant has received the services and paid the service tax, therefore, the cenvat credit cannot be denied. 13. In view of the above discussion, we hold that the impugned order deserves no merit, therefore, the cenvat credit availe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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