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TMI Blog2022 (7) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... dquarter team, Jaipur-1 against both the said service providers alleging the wilful short-payment of service tax by them, that too, by suppressing the material facts. The appellant was observed by the investigating team to have availed Cenvat Credit of input services on the basis of supplementary invoices all dated 31.03.2012 issued by both the said contractors after the offense cases were detected against both the said service providers. The appellant was also observed to have taken and utilized the Cenvat Credit of the input services on the basis of said supplementary invoices for an amount of Rs.38,17,248/-. Alleging that the said availement of Cenvat Credit is in clear violation of Rule 9 (bb) of Cenvat Credit Rules, 2004 that the aforesaid amount was proposed to be disallowed and recovered from the appellant alongwith the interest and the appropriate penalties vide Show Cause Notice No.16053 dated 28.03.2017. The said proposal was initially confirmed vide Order-in-Original No.23/2017-18 dated 10.11.2017. The appeal thereof has been rejected vide Order-in-Appeal bearing N.18/2019 dated 23.01.2019. Being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. J.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 76, 77 and 78 of the Finance Act for the reason that there was no intention to evade the duty with the service providers. It is submitted that in view of said findings the confirmation of violation of rule 9 (bb), under which availment of Cenvat credit on supplementary invoices is not available only in case of wilful intent to evade the duty, has wrongly been invoked by Commissioner (Appeals). The order accordingly, is prayed to be set aside and appeal is prayed to be allowed. 4. Per contra, ld. DR has laid emphasis upon the findings in para 7.6 of the order under challenge. It is impressed upon that suppression of facts has clearly been held as against the appellant. The cogent reasons are very much available in the order itself or those findings. Impressing upon no infirmity in the order under challenge, the appeal is hereby prayed to be dismissed. 5. After hearing the rival contentions of the parties and perusing the entire record, I observe and hold as follows:- The Commissioner (Appeals) has confirmed the impugned demand against the appellant on following three counts:- (1) That appellant cannot take Cenvat Credit of service tax on the strength of supplementary invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry invoices to the appellants claiming the amount of tax liability already discharged by them. 5.4 The issue with regard to non-payment of service tax on the reimbursable expenses of the salary/ wages of the contract labours received by the service providers of manpower recruitment agencies from their service recipients had travelled upto Hon'ble Apex Court wherein it got settled by the decision in the case of Union of India and Anr. Vs. M/s. Intercontinental Consultants and Technocrats Pvt. Ltd. reported as 2018 (3) TMI 357 (S.C.). Hon'ble Apex Court therein has held as per Section 67 (un-amended prior to 1st May, 2006) or after its amendment w.e.f. 1st May, 2006 the only possible interpretation of the said section 67 is that for the valuation of taxable services for charging service tax, the gross amount charged for providing such taxable services only has to be taken into consideration. Any other amount which is not for providing such taxable service cannot be the part of the said value. It was clarified that the value of service tax cannot be anything more or less than consideration paid as quid pro quo for rendering such services. Accordingly, it was held that section 67 of F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of input service who otherwise is a manufacturer is entitled to take Cenvat credit based upon the supplementary invoices also. As already discussed above, there was no malafide intent on the part of the appellant nor even on the part of his service providers, there can be no question of misstatement or suppression of facts. It is not the case of department that anywhere provision of Finance Act/ Rules has been violated with an intent to evade duty. Nor there is any evidence about any act on part of appellant or even on the part of service provider. Hence it becomes clear that the case of appellant do not fall within the exception mentioned in rule 9 (1) (bb). Hence, I hold that Commissioner (Appeals) has committed an error while relying upon this rule to deny the availment of Cenvat Credit by the appellant on supplementary invoices. This Tribunal in the case of Madras Cements Ltd. vs. Commissioner of Central Excise, Trichy reported as 2010 (258) ELT 463 has held that supplementary invoices on the strength of which disputed credit was taken cannot be an in-eligible document. The restriction contained under Rule 9 (1) (b) when there is no intentional evasion of duty. 7. Coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case leading to short payment or non-payment of tax. The onus of establishing that these ingredients are present in a given case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice alongwith evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period." 10. Since the Commissioner (Appeals) himself has not imposed any penalty under section 78 upon the appellants allegation of malafide intent of service provider or even of the appellant is not sustainable. Also it is apparent that the Department was fully aware of the fact of availment of Cenvat Credit on the basis of supplementary invoices as the Department had conducted inquiry in this respect against the service provider of the appellants in the year 2012 and in the year 2013 even against the appellants. Even the statements of supply chain manager of the appellant, Shri Mahipal Bhisht was got recorded in 2013 itself. The issuance of Show Cause Notice in the year 2017 is apparently beyond the reasonable time for issuing the same. At least it stands clear that fact of availment of Cenvat credit on disputed supplementar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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