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TMI Blog2023 (5) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004. It is also a case of the department that the head office should have obtained ISD registration and issued ISD invoice which is only a valid service tax payment document for availing the cenvat credit, on this basis the cenvat credit was denied therefore, the present appeal filed by the appellant. 03. Shri Hasit Dave, learned counsel appearing on behalf of the appellant submits that since the appellant alone received the services and no part of the services was used by their other unit therefore, there was no need of ISD invoice from their head office for availing the cenvat credit. Moreover, 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 allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions made by both the sides and perused the record. We find that in the present case, the main reason for denial of cenvat credit of service tax under reverse charge mechanism is that GAR-7 challan on the basis of which the credit was availed is not valid document and also on the ground that the head office should have issued ISD invoice in favour of the appellant however, this particular allegation was not specifically made in the show cause notice therefore, any order passed by the Commissioner (Appeals) on this issue is not tenable. 5.1 We further find that as per the undisputed 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 allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant portion of the order is reproduced as under :- Insofar as requirement of registration with the department as a "7. condition precedent for claiming Cenvat credit is concerned, Learned Counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find little evidence to support the allegations of wilful misstatement, suppression, fraud or collusion on the part of the assessee. In fact, perusal of the show cause notice would show that the entire basis of the Revenue was wrongfully availment of the credit. Mere wrongfully availment without element of mens rea and that too for the purpose of evading payment of duty would not be sufficient to impose penalty. The adjudicating authority, without any basis or evidence, merely mechanically recorded that the assessee had, by reason of wilful misstatement, suppression of fact or in 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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