TMI Blog2019 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... value of telecommunication services provided by the appellant? - HELD THAT:- The said question cannot be adjudicated unless and until there are appropriate invoices on record proving that no amount has been received by the appellant from their customers in lieu of providing them with the Modem or that supply of Modem was purely a trading activity of the appellant. In the absence thereof, the adjudicating authority has committed no error while forming the opinion that the appellant has not paid service tax on the gross amount charged from the customers inasmuch as they have also charged for the Modem provided to the subscriber and that the same is justified - Since admittedly, the goods did not involve payment of VAT, the question of those being purely a trading activity cannot be ascertained - there are no reason to differ from the observations that Modems rather were typically the part of service provision - demand upheld. Wrong availment of service tax credit on rent-a-cab services along with interest thereon - HELD THAT:- The availment of utilisation of Cenvat credit on rent-a-cab services has duly been acknowledged on behalf of the appellant. Admissions are the best evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission nor the documents to falsifying the said reversal. In view thereof, the order disallowing the credit taken under Rule 6(3) of Cenvat Credit Rules, 2004 and reversal thereof is hereby upheld. Appeal allowed in part. - Service Tax Appeal No. 55092 of 2014 - Final Order No. 51311/2019 - Dated:- 3-10-2019 - HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) AND HON BLE MS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri Suresh Goel, Advocate - for the appellant Shri Sanjay Jain, DR - for the respondent ORDER Rachna Gupta : The present Appeal has been preferred against the Order-in-Original No. 19/AKJ/2014 dated 30 May, 2014. 2. Facts, in brief, in the impugned adjudication, are that M/s Bharat Sanchar Nigam Limited, Telephone Exchange, Gurgaon, i.e. the appellant herein, are registered for providing telephone services falling under Section 65(105)(b) / 65(105)(zzzx) of the Finance Act, 1994. The appellant is also availing Cenvat credit on input services, capital goods and inputs in accordance with Cevat Credit Rules, 2004. A special audit of appellant s record for the period 2008-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a calculation table as Annexure-2 which is based not only on the relied upon documents but all the relevant ST-3 returns. The perusal thereof makes abundantly clear that there has been excess payment of ₹ 23,67,540/- towards the service tax by the appellant in March, 2011 that is the last month of the period in dispute. It is this excess payment which has not been adjusted towards the noticed liability of the appellant. The order under challenge qua this issue is, therefore, alleged to be incorrect and is, accordingly, prayed to be set aside. Per contra, learned Departmental Representative has submitted that the relied upon document i.e. Annexure-1 clearly shows difference of ₹ 2,98,07,966.98 in the figures of trial balance then that of the figures in ST-3 returns. Above all, there was the appellant s own admission about the said difference and about figures in ST-3 returns to be wrong. Accordingly, there is no infirmity in the order under challenge qua this issue. After hearing both the sides on this issue and perusing the appeal record, we are of the opinion that apparently and admittedly document of defence was produced by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cannot be adjudicated unless and until there are appropriate invoices on record proving that no amount has been received by the appellant from their customers in lieu of providing them with the Modem or that supply of Modem was purely a trading activity of the appellant. In the absence thereof, we are of opinion that the adjudicating authority has committed no error while forming the opinion that the appellant has not paid service tax on the gross amount charged from the customers inasmuch as they have also charged for the Modem provided to the subscriber and that the same is justified. Since admittedly, the goods did not involve payment of VAT, the question of those being purely a trading activity cannot be ascertained. In the given circumstances and absence of evidence, we find no reason to differ from the observations that Modems rather were typically the part of service provision. As a result, we confirm the demand proposed on this aspect. Issue-III Wrong availment of service tax credit on rent-a-cab services along with interest thereon: 8. The availment of utilisation of Cenvat credit on rent-a-cab services has duly been acknowledged on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides on this issue, we observe that there is no denial about the impugned invoices to have all details except the PAN based registration number of the service providers. There is also no denial that all such registration numbers were provided by the appellant. The appellant has acknowledged that M/s L.K. Enterprises only one of the service providers among the said list has not deposited the service tax. However, remaining all have discharged their liability. There is nothing on record produced by the Department to falsify the discharge of liability by the remaining service providers. In view of this observation, the demand on this issue stands set aside, with respect for all other service providers except for M/s L.K. Enterprises. We draw our support from the findings of the case titled as Laxmi Organic Industries Ltd. Vs. Commissioner of Central Excise, Raigad 2015 (5) TMI 665-CESTAT Mumbai, wherein it was held with respect to the issue of denial of Cenvat credit on account of not indicating registration number of inputs service provider on the invoices as was decided based on the decision of this Tribunal in the case of Secure Meters Ltd. holding that credit cannot be deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04. 11. Qua this liability also there is an apparent acknowledgement on part of the appellant that the proposed amount of credit has already been reversed by them. There is no otherwise submission nor the documents to falsifying the said reversal. In view thereof, the order disallowing the credit taken under Rule 6(3) of Cenvat Credit Rules, 2004 and reversal thereof is hereby upheld. 12. In view of entire discussion, the appeal in hand is hereby partly allowed in following terms: (i) Difference between the trial balance and ST-3 returns, if any, is remanded to be re-verified by the adjudicating authority in terms of additional documents placed on record; (ii) The demand with respect to the service tax qua Modem provided by the appellant to its customers is hereby confirmed; (iii) The availment of Cenvat credit of rent-a-cab services, since been acknowledged is also hereby confirmed; (iv) The denial of Cenvat credit and reversal thereof on the basis of invoices is hereby set aside except for M/s L.K. Enterprises. The adjudicating authority below by way of remand is required to calculate the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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