TMI Blog2023 (5) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... e are no reference to the services being received by the appellant. Accordingly these documents also do not qualify as per the prescribed document for the purpose of availing the Cenvat credit. Hence denial of credit in respect of these documents cannot be faulted with as the appellant has availed this credit without production of the document as required. Levy of penalty - HELD THAT:- There are no merit in the submission of the appellant to the effect that penalty could not have been imposed on them - Penalty under Section 78 needs to be modified to the extent of admissible credit on rent-a-cab service. Appeal allowed in part. - Service Tax Appeal No. 85922 of 2019 - FINAL ORDER NO. A/85328/2023 - Dated:- 13-1-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Kamal Sharma, Chartered Accountant, for the Appellant Shri Vinod Kumar, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. PK/965/ME/2018 dated 30.11.2018 passed by the Commissioner of GST Central Excise (Appeals-II), Mumbai. By the impugned order, Commissioner (Appeals) has upheld the order-in-origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant and Shri Vinod Kumar, Assistant Commissioner, Authorised Representative. 3.2 Arguing for the appellant, learned counsel submits that:- For the year 2011-12 the credit to the extent of Rs.10,050/- denied to them has not been challenged as they are covered by the exclusion clause. What is under challenge is for the credit prior to the insertion of the exclusion clause. Unfortunately these services have nexus with the output services provided by them as has been held by various decisions. In view of above, he prays that credit may be allowed. 3.3 Arguing for the Revenue, learned AR submits that:- The issue involved in the case is not vis- -vis the admissibility of the credit but with regard to availability of the documents against which the credit has been taken except for rent-a-cab service. Appellant has not been able to produce the documents even at this stage for establishing that credit has been correctly taken against those documents. From the documents in respect of insurance services, it is clear that none of the invoices are in the name of appellant and credit cannot be allowed. 4.1 I have considered the impugned order along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Rule 2 (1) of the Cenvat Credit Rules, 2004 alongwith the other issues covering all the four appeals are examined as under 8.1 Expenses related to Employees Stock Options: The adjudicating authority has disallowed the Cenvat credit on expenses related to ESOP on the grounds that the expenses incurred by the appellant are related to staff welfare and has no nexus with the output services provided by the appellant. However, the appellant contended that ESOP schemes is perfect incentive for employees to ensure a long term alignment with the organisation and are specifically included in the input service definition and hence eligible for availing Cenvat credit. I find that the expenses related to ESOP has been utilised for incentive schemes of the employees only. I am of the view that the input services have been specifically excluded from the purview of the definition of input service under Rule 20) of the Cenvat Credit Rules, 2004 with effect from 01.04.2011, if used for personal use. In the present case, the appellant has failed to produce any tangible documentary evidence to prove that the said services are not used for the personal use of the employees and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail Travel Agent's Services The appellant contended that executives and employees of the company travel to different locations within India and outside India to meet clients for canvassing their business and for carrying out their duties and also training, hence, the said services are eligible as input services. I am of the view that the Cenvat credit pertaining to tour operator/air travel agent's services is admissible, if proved that the said employees have travel for business purpose only. However, the appellant failed to prove that their employees have travel for business purpose and also failed to produce any tangible documentary evidence to prove that the said services are not used for the personal use of the employees and also failed to prove that in case of absence of such input services, the quality and efficiency of the provisions of service is adversely impacted. Since the appellant has failed to established the direct nexus such input services for providing output services, therefore, their plie this in relation to business and output service cannot be considered and hence are liable to be rejected and since such input services are not analogous to the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rent-a-cab services has been utilised by the employees only. However, the appellant failed to produce any tangible documentary evidence such as invoices, vouchers etc. to prove that the said travel is for the business meetings purpose and not for the personal use of the employees. The appellant has also failed to prove that in case of absence of such input services, the quality and efficiency of the provisions of service is adversely impacted. In my view, these services only constitute activities related to business which stands deleted from the definition of Input services as defined in Rule 2 (1) of the Cenvat Credit Rules, 2004 and these services therefore do not have any direct nexus with the 'output services' for providing an 'output service' by the appellant. In view of above, I do not intend to interfere with the findings of the Adjudicating Authority in respect of such services and accordingly uphold the denial of credit to that extent. Held Accordingly. 8.6 Insurance Medical and Health services:- The appellant contended that the - company is bound to provide group accident insurance and medical insurance coverage to the employees. Similarly, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth insurance etc. is not allowed when services are used primarily for personal use of any employees. The group insurance taken by the assessee is only in favour of their employees, even though the claim is filed by them and the claim is settled on them, the final beneficiary are the workers only. Hence, it appears that they cannot take credit of service tax paid on insurance in respect of their employees, in terms of the above provisions. Respectfully following the above decision, I do not intend to interfere with the findings of the Adjudicating Authority in respect of these services and accordingly uphold the denial of credit to that extent. Held Accordingly. 9. Further, the appellant has contended that penalty is not imposable as penalty under Rule 15(3) of Cenvat Credit Rules,2004 where the demand for service tax arises on account of fraud, collusion, suppression etc, however, in the instant case, credit is not taken to evade any service tax. Further, the appellant contended that extended period of limitation is not applicable, hence no penalty can be levied. Whereas, the said fact of the wrong availment of Cenvat credit would remain unearthed if EA-2000 Audit I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a period of six months from the date on which the Finance Bill, 2012 receives the assent of the President. ; 9.2 The above provision, fortified by an non obstante clause enacts that no penalty shall be imposable for failure to pay the Service Tax payable, as on 6-3-2012, on the taxable service referred to in sub-clause (referred to in Section 65(105)(zzzz)] subject to the condition that the amount of Service Tax along with interest is paid in full within a period of six months from the date on which the Finance Bill is effective; i.e., within six months from 28-5-2012. In the present case, the appellant has not paid the service tax dues alongwith interest. Since the total dues are not paid the benefit of waiver of penalty under Section 80 of the Finance Act, 1994 could not be extended to them and accordingly I upheld the imposition of penalty under Section 78 of the Finance Act, 1994. Held Accordingly. 9.3 Further, I find that the facts remains that the appellant has suppressed the facts with intention to avail inadmissible cenvat credit. The Hon'ble Tribunal in the case of M/s Jindal Vijaynagar Steel Ltd. reported in 2017 (346) ELT 378 (Kar), which is maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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