TMI Blog2023 (10) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... 183 - GUJARAT HIGH COURT ], wherein the Hon ble Court has held Tribunal, in our opinion, rightly did not disentitle the assessee from the entire Cenvat credit availed for payment of duty. Before the amendment was carried out in the year 2016, the assessee was given the option to distribute the CENVAT Credit to one unit or also to other unit, and provision for proportionate credit was brought only post amendment of 2016. Therefore, it is at the option of the head office whether it wanted to distribute the credit to the appellant only or to distribute it to other units. Therefore, in view of existing provisions of CENVAT Credit Rules, 2004 during relevant period, the 100% credit availed by the appellant is in order in terms of Rule 2007, existing at the relevant time. Therefore on this count also the adjudicating authority has wrongly denied the credit. The impugned order is set aside. The appeal is allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Jigar Shah , Advocate for the Appellant Shri. Anand Kumar , Superintendent ( Authorized Representative ) for the Respondent ORDER RAMESH N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure for ISD. Therefore, there is no mala fide intention of the appellant, accordingly, there is no suppression of fact. He submits that the appellant have filed their the monthly return and had provided all the details required therein. He submits that the ST3 return does not have any column for providing all the details. Accordingly for non-disclosure of any detail in present case will not amount to suppression. In support, he placed reliance on the following judgments: GID Goenka Pvt Ltd Vs. CCE-2023 (8) TMI 995- CESTAT 3. Shri Anand Kumar, Learned Superintendent (Authorized Representative) appearing on behalf of the respondent reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record, we find that the issue involved is that whether the appellant can avail the CENVAT Credit on ISD invoice which was issued by their head office without having ISD registration is correct or otherwise. 4.1 We find that there is no dispute about the payment of Service Tax on the service received by the appellant. Therefore, merely because the ISD invoice was issued without having registration of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed Rules of 2005 for registration of input service distributors, who would have to make application to the jurisdictional Superintendent of Central Excise in terms of Rule 3 thereof. Sub-rule (2) of Rule 3 further required any provider of taxable service whose aggregate value of taxable service exceeds certain limit to make an application for registration within the time prescribed. However, there is nothing in the said Rules of 2005 or in the Rules of 2004 which would automatically and without any additional reasons disentitle an input service distributor from availing Cenvat credit unless and until such registration was applied and granted. It was in this background that the Tribunal viewed the requirement as curable. Particularly when it was found that full records were maintained and the irregularity, if at all, was procedural and when it was further found that the records were available for the Revenue to verify the correctness, the Tribunal, in our opinion, rightly did not disentitle the assessee from the entire Cenvat credit availed for payment of duty. Question No.1 therefore shall have to be answered in favour of the respondent and against the assessee. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee had utilized credit from one unit for the purpose of duty liability of its other unit without pro rata distribution by the input service distributor and further the assessee had not registered itself under the Service Tax (Registration of Special Category of Persons), Rules 2005. 2.5 Hon'ble High Court dismissed the department's appeal holding that such view was not sustainable as there was no previous restriction of this nature under Rule 7 of the CENVAT Credit Rules, 2004. Further nonregistration of ISD is only a procedural irregularity for which substantial benefit of CENVAT credit cannot be denied when all the necessary records have been maintained by the respondent. 10. The Hon'ble High Court of Madras referring to the judgment of Dashion Ltd., supra, in M/s. Pricol Ltd., supra has held thus: 4. The above decision has been accepted by the Central Board of Excise and Customs, vide Circular dated 16.02.2018. Therefore, the above questions have to be decided against the Revenue and accordingly, decided so. From the above decision, it can be seen that not only the Hon ble Courts have decided, but the Board also vide Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods or providing of exempted services shall not be distributed; (c) credit of service tax attributable to service used wholly in a unit shall be distributed to the unit; and (d) credit of service tax attributable to service used in more than one unit shall be distributed pro rate on the basis of the turnover during the relevant period of the concerned unit to the sum total of the turnover of all the units to which the service relates during the same period. 4.3 The above provisions were interpreted by the Hon ble Bombay High Court in the case of M/s. Overlikon Balzers Coating India Pvt Ltd-2018 (12) TMI 1300 (Bombay High Court), wherein the following interpretation was made: 9. From reading of the above Rules both pre and post amendment, it would be noticed that both provisions give an option to the assessee concerned whether to distribute input services tax available to it amongst its other manufacturing units which are providing output services. This is evident from the use of word may distribute the CENVAT credit is found in Rule 7 both prior and also post 2012. Thus, from the reading of the Rules, the option was available to the assessee whether to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
