TMI Blog2022 (9) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... redit is not eligible to the appellant. On perusal of the invoices, it can be seen that the appellant has paid the service tax on such charges as collected by M/s.KJF Logistics. It is also established by the letter issued by KJF Logistics that they have not availed credit on the service tax mentioned in the invoices issued by third parties. On such score, the department cannot deny the credit alleging that invoices were raised in the name of CHA, M/s.KJF Logistics and that services were not provided to the appellant - there is no dispute with regard to service availed by the appellant and service tax paid by them, the credit cannot be denied at the service recipient s end. The credit availed on 19 invoices has been denied alleging that name in the invoices show the name of M/s. M/s.Mitsubishi Corporation India Pvt. Ltd. and not that of the appellant - HELD THAT:- The original importer had engaged various service providers for import of the goods and clearance of the goods. After purchase of the goods by the appellant, these services providers had provided services to the appellant for clearances of the goods. However, the invoices were issued in the name of original importer M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the credit availed by the appellant on such invoices raised by M/s.KJF Logistics, as if they were the direct service provider, is not eligible for credit for the appellant. Show cause notice was issued to the appellant proposing to disallow the credit of an amount of Rs.10,69,590/- for the period from March 2012 to March 2015. After due process of law, the original authority vide order dated 27.09.2017 confirmed duty demand of Rs.5,81,389/- along with interest in respect of invoices which did not contain the name of the appellant as recipient of services. He also imposed penalty under the provisions of law. Aggrieved by such order, the appellant filed appeal before the Commissioner (Appeals) which was rejected. The appellant approached the Tribunal and vide Final Order dated 11.03.2009, the matter was remanded by the Tribunal to the adjudicating authority to examine the transactions once again. Subsequent to the remand, the original authority in de novo adjudication again confirmed duty demand of Rs.5,81,389/- and imposed penalty. Against such order, the appellant filed appeal before the Commissioner (Appeals) who upheld the order passed by the original authority. Hence the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying credit is that in 10 invoices instead of mentioning the name and address of the factory, the address of the Head office of the appellant was mentioned. It was argued by Ld. Counsel that Department does not dispute that the services were availed for import of raw material by the appellant s factory. Merely because the invoices were issued in the name of the Head office situated at Madurai, credit disallowed is without any legal or factual basis. 4. The third reason for disallowing credit on 19 invoices is that instead of name of the appellant, name of M/s.Mitsubishi Corporation India Pvt. Ltd. is mentioned. He submitted that the original importer of the goods was M/s.Mitsubishi Corporation India Pvt. Ltd. Later, the appellant had purchased the goods on High Sea Sales basis. The appellant had explained these facts and also produced documents before the original authority to establish that the appellant had purchased the goods on high sea sales basis. Many services required for import of the goods into the Indian territory were already agreed upon to be provided by various service providers. Such an agreement was entered by M/s.Mitsubishi Corporation India Pvt. Ltd. (the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices in the nature of steamer agent service, CFS service, De-stuffing service etc. to other persons. They had collected charges in the nature of steamer agent charges, CFS charges, De-stuffing charges, survey charges. The third parties to whom the services were outsourced by M/s.KJF Logistics had raised the invoices in the name of M/s.KJF Logistics, Chennai and not in the name of the appellant. Though the services were provided to the appellant the invoices were raised in the name of KJF Logistics. The Department has taken the view that since the services were outsourced, M/s.KJF Logistics is the service recipient and therefore the credit is not eligible to the appellant. On perusal of the invoices, it can be seen that the appellant has paid the service tax on such charges as collected by M/s.KJF Logistics. It is also established by the letter issued by KJF Logistics that they have not availed credit on the service tax mentioned in the invoices issued by third parties. On such score, the department cannot deny the credit alleging that invoices were raised in the name of CHA, M/s.KJF Logistics and that services were not provided to the appellant. It is clear that the goods were imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the invoices were issued in the name of original importer M/s.Mitsubishi Corporation India Pvt. Ltd. It is clear from the records that the appellant had paid service tax for the services availed. I find that denial of credit alleging that invoices mention the name of the original importer is too technical and cannot be accepted. 12. Ld. Counsel has also argued on the ground of limitation. On perusal of records, I find that there is no positive evidence put forward by the department to show that the appellant had intentionally done some act to avail wrong credit. All the issues required interpretation of provisions of law with regard to availment of credit and there is no ulterior motive or overt act established by the department to show that appellant has done some fraud or suppressed facts so as to evade payment of duty. The department was given intimation with regard to import of goods and they have also filed E.R.1 returns disclosing credit availed by them. On such score, a very vague allegation that the appellant has suppressed facts with intention to evade payment of duty cannot be the basis for invoking extended period. For these reasons, the demand is time-barred. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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