TMI Blog2023 (5) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... e service tax on their own under GAR-7 challan therefore, the only document which is available for taking credit in respect of service tax under reverse charge mechanism is the GAR-7 challan only therefore, if the contention of the revenue is accepted then in every case of payment of service tax under Reverse Charge Mechanism, the assessee cannot avail the Cenvat credit which is not the provision under the law. Since the entire service was received by the appellant s unit and their invoice of the same was also issued by the service provider in favour of the appellant s unit the credit cannot be denied only on the basis that the Head Office has not issued the ISD invoice. The significance of ISD invoice is for the purpose that where the input service credit has to be distributed to more than one unit, the input service distributed invoice is required. However, in the present case, since entire service covered under the invoice of service provider was received and used by the appellant, there is no case of distribution of input service credit to any other unit except the appellant unit. Only for this reason also even though the ISD invoice was not issued, the credit cannot be deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the GAR-7 challan through which the service tax was paid under reverse charge mechanism is a valid service tax payment document on the basis of which the cenvat credit can be availed therefore, there is no violation on the part of the appellant. He further submits the service for which the cenvat credit was availed by the appellant unit was received and used by the appellant s unit only and the payment of service tax is also not under dispute therefore, there is no reason to deny the cenvat credit. 3.1 He further submits that show cause notice did not contain specific allegation that the service tax was to be paid through ISD and not under centralized registration hence, new ground raised first time in Order-In-Appeal therefore, the same is not sustainable being travelled beyond the scope of show cause notice. He also submits that there is absolutely neither any allegation in the show cause notice nor in the impugned order that the appellant has availed wrong cenvat credit due to fraud, willful mis-statement or suppression of fact with intent to evade payment of duty. Despite this, the Commissioner (Appeals) has confirmed the demand beyond the normal period of limitation which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fact of the case the service was received by the appellant, the invoices are in favour of the appellant. It is only the head office who paid the service tax under its centralized registration under GAR-7 challan. In this position, when the service was received by the appellant and service tax was undisputedly paid and particularly when the invoices are in favour of the appellant the credit cannot be denied. It is also not the case of the department that the part of the service was used by their other unit therefore, we do not see any reason why the cenvat credit should not be allowed to the appellant. 5.2 As regard the availment of credit on the basis of GAR-7 challan, the challan is also a prescribed document under Rule 7 of Cenvat Credit Rules, 2004. Moreover, in case of payment of service tax under reverse charge mechanism the assessee pays the service tax on their own under GAR-7 challan therefore, the only document which is available for taking credit in respect of service tax under reverse charge mechanism is the GAR-7 challan only therefore, if the contention of the revenue is accepted then in every case of payment of service tax under Reverse Charge Mechanism, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. That does not mean that the assessee is entitled to refund as 8. claimed by him consequent to setting aside these orders. As is clear from the order of the original authority in the show cause notice, they have categorically called upon the assessee to furnish the particulars of the taxes paid on input services. They called upon the assessee to produce the invoices, bills, receipts to substantiate their claim for their verification. The assessee would be entitled to the refund of the Cenvat credit only on his proof that he has paid input Service tax. In that view of the matter, the matter is now remanded back to the adjudicating authority to decide the correctness of the claim made by the petitioner. Liberty is reserved to the assessee to produce such documents which are in his possession to substantiate his claim. On production of such documents, the assessing authority shall process the application for refund in accordance with law and expeditiously. In view of the above judgment, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of the provisions of the Rules, evaded payment of central excise duty. He was not even sure whether this was a case of wilful misstatement or suppression of fact or contravention of provisions of the Rules. (c) In the case of CCE ST, Hyderabad vs. Fenoplast Limited (supra), the Tribunal passed the following order:- 5 . I have heard the submissions made by both sides. The main issue is that the appellants did not obtain ISD registration before distribution of the credit by the Head office. Undisputedly, the Head office had Centralised Registration for payment of service tax. Later, from 11-3-2005 ISD registration was introduced. Therefore, it can be seen that the ISD registration is only to facilitate the distribution of credit. Failure to obtain ISD registration can be only a procedural lapse which has been rectified by the appellant on receiving the show cause notice. In my view, the Commissioner (Appeals) has rightly considered the same as only a procedural lapse and condoned the same for the reason that there is no doubt that the respondent has paid the service tax on input services which have been distributed by the Head office. The second ground put f ..... 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