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TMI Blog2023 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) Rs. 1,82,602/- the invoices do not contain the service tax registration No. of the supplier of input services. Being aggrieved by the impugned Order-in-Original, the present appeal is filed by the appellant. 2. Shri Devashish K. Trivedi learned Counsel appearing on behalf of the appellant as regards the credit of Rs. 77,74,439/- it is his submissions that during the relevant period no time limit was prescribed for availing the credit. Therefore, merely by referring to time limit provided under Section 11A, credit cannot be denied. He submits that as regard receipt of input service, use thereof for manufacturing activity, payment of service charges to the provider of the service are not in dispute as the appellant have submitted Chartered Accountant Certificate, the details of their accounts showing payment of service charge to the service provider. Therefore, merely on the grounds of limitation which is not provided in the Cenvat credit Rules, the credit cannot be denied on this ground of limitation. 2.1 As regard the denial of Cenvat credit of Rs. 2,21,112/- , he fairly concede that small part of service is related to the residential premises of the director which the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of C.Ex.. Ahmedabad. * 2011 (273) ELT 535 (Tri.-Ahmd.) Commissioner of Central Excise, Ahmedabad V/s. Pierlita India Pvt. Ltd. * Circular F. No. 345/2/2000-TRU dtd. 29/08/2000. * 2013 (287) ELT 321 (Tri.-Del.) Steel Authority of India Ltd. V/s. Commissioner of C.Ex. Raipur. * 2009 (239) ELT 99 (Tri. Bang.) Coromandel Fertilizers Ltd. V/s. Commr. of C. Ex. (A), Visakhapatnam-IV. * 2019 (26) GSTL 470 (Del.) Global Ceramics Pvt. Ltd. V/s. Principal Commissioner of C.Ex., Delhi-I. * 2001 (129) ELT 459 (Tri.-Del.) Steel Authority of India Ltd, V/s. Commissioner of C.Ex., Raipur. * 2003 (160) ELT 199 (Tri.-Chennai) Tamilnadu Petro products Ltd. V/s. Commissioner of C.Ex. Chennai. 3. On the other hand Shri R.K. Agrawal, learned Superintendent (A.R) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the record. We find that the reason given for denial of cenvat credit of Rs.77,74,439/- by the Adjudicating Authority that since one year period is provided under Section 11A for demanding of duty the same shall apply for availment of Cenvat credit also. This reason giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Duty during the course of investigation. 11.2 A SCN came to be issued proposing a demand of CE duty totalling Rs. 3,04,73,655/-. BRCPL and the other entities applied to the CCESC for settlement, accepting the duty liability of Rs. 67,38,815/- and interest liability of Rs. 30,48,639/- accepting that the change in MRP should be deemed to be manufactured. BRCPL claimed that it had already deposited CED of Rs. 67,40,000/- along with interest of Rs. 30,50,000/-. It accordingly requested for waiver of penalty and prosecution and allowing deduction of Cenvat Credit of CVD and settlement of demand on the differential duty. 11.3 Before the CCESC, the Department contended that under Rule 4(1) of the Cenvat Credit Rules, 2004 ('CCRs'), a time limit of six months from the date of issuance of the copy of the documents specified in Rule 9(1) was imposed for claiming the Cenvat Credit with effect from 1st September, 2014. It was also contended that the applicant had withheld from the Central Excise Authority, information that it had changed the MRP and cleared the final goods with an intention of evading payment of CE duty. It had not followed the proper procedure nor maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Rule 57G of the CE Rules". Therefore, the decision proceeded on a concession. 14. As far as the decision in Rathi Ispat Ltd. v. CCE, Meerut (supra) is concerned, here the reliance is essentially placed on the decision in Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore (supra). None of these decisions are of help as far as the Department is concerned. 15. In the present case, we are concerned with the amendment to the Rule 4 of the CCRs with effect from 11th July, 2014, which reads thus : "Provided also that the manufacturer or the provider of output services shall not take Cenvat credit after 6 months of the date of issue of any of the documents in sub rule (1) of rule 9." 16. It is in terms of this amendment that it was provided that the Cenvat Credit must be taken within one year of the issue of invoice for input goods or input services. 17. There is substance in the contention of the Learned Counsel for the Assesses in both the cases that the above amended provision cannot be given retrospective effect. As explained in Eicher Motors Ltd. v. Union of India (supra) the rule of lapse of credit lying with it unutilized on the date of amendment, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective effect. 21. The Gujarat High Court in Filco Trade Centre Pvt. Ltd. v. Union of India (decision dated 5th September, 2018 in SCA No. 18433/2017) [2018 (17) G.S.T.L. 3 (Guj.)] followed the dictum of the Supreme Court in Jayam & Co. v. Assistant Commissioner (supra) and reiterated that the input tax credit could not be denied on the basis of an amendment, which is prospective. The question dealt with by the High Court was whether Section 140A(3)(iv) of the CGST Act, which declined the Cenvat credit in relation to goods purchased prior to one year from the appointed date, could be given retrospective effect. In answering the question in the negative, the Gujarat High Court held as under : "30. To sum up we are of the opinion that the benefit of credit of eligible duties on the purchases made by the first stage dealer as per the then existing CENVAT credit rules was a vested right. By virtue of clause (iv) of Sub-Section (3) of Section 140A such right has been taken away with retrospective effect in relation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to the provision has no rational or reasonable basis for impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed by the Notification No. 21/2014-C.E. (N.T.), dated 11-7-2014 whereby the assessee is supposed to take the credit within 6 months/1 year from the date of invoice. Considering this amendment for the past period this Tribunal has considered the similar issue wherein it was held that the invoice issued prior to date of Notification No. 21/2014-C.E. (N.T.), dated 11-7-2014 the Cenvat credit cannot be denied on the ground of limitation. The relevant judgment is as under : * Alok Master Batches Pvt. Ltd. v. CCE & ST, Daman - 2021-VIL-170 CESTAT-AHD "4. I have heard both the sides and perused the records. I find that the major issue to be decided is that the cenvat credit was availed after 1-9-2014, in respect of invoices issued prior to 1-9-2014. In the light of the amendment notification no. 21/2014-C.E. (N.T.) whether the claim of cenvat credit is time barred. I find that though there are various decisions on the issue however, the Division Bench in the case of Bharat Aluminium Company Ltd. v. Joint Commissioner of Central Excise, Central Goods and Service Tax, held that the limitation of 6 months provided as per notification no. 21/2014-C.E. (N.T.) is not applicable in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere issued prior to 1-9-2014. 5. The revenue is at liberty to verify this fact, therefore the impugned order is not sustainable and the same is set aside. Since the entire demand is set aside. The personal penalty imposed on Shri Vijay Kumar Srivastaw will also not sustain the same is also set aside. Both the appeals are allowed with consequential relief, if any, in accordance with law." 4.1 This issue has been considered by the Hon'ble Punjab and Haryana High Court in the case of Industrial Cables (supra) wherein the same issue of limitation for availing the Cenvat credit was considered. The Hon'ble High Court has passed the following order : "5. We have heard Mr. Kamal Sehgal, Learned Counsel for the revenue. The principle question raised before us is whether a period of limitation of 6 months for availing Modvat credit during the relevant period could be introduced when no provision existed. It is relevant to mention that in the present case we are concerned with the period from 4-1-1989 to 1-2-1991. It is significant to notice that Rule 57G of the erstwhile Central Excise Rules, 1944 prescribing limit of six months was introduced on 29-6-1995 which had prospective effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation by implication; (ii) & (iii) In view of answer to the first question, the question Nos. (ii) and (iii) also have to be decided against the revenue and in favour of the dealer. 8. As a sequel to the above discussion, the reference is answered in favour of the dealer and against the revenue." 4.2 The same issue was considered by Hon'ble Allahabad High Court in the case of Ram Sawrup Electricals Ltd. (supra) wherein the Hon'ble High Court passed the following order :- 4. At the outset it may be mentioned here that except the statement of case sent by the Tribunal there is no document on record. We are proceeding to decide the present Reference on the basis of the record available before us and on the basis of the arguments advanced by the Learned Counsel for the parties. Shri K.C. Sinha submitted that even though during the relevant period there was no limitation provided under Rule 57A of the Central Excise Rules the time limit provided under Section 11B of the Act would be applicable and, therefore, any amount of Modvat credit which has been availed of falls short of the actual amount which could have been availed ought to have been taken credit of within six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded. The section also provides for an extended period on certain contingencies and situations. The situation on hand and the one which has to be dealt with under Rule 57-I, as it stood unamended, does not fall under any one of those contingencies provided for in Section 11A of the Act. Part AA of the Rules in which Rule 57-I is found included provides a special scheme for earning credit and adjustment of duty paid on excisable goods used in inputs in the manufacture of what is referred to as "final product, and thereby enable the manufacturer to utilize the credit so allowed towards payment of duty of excise leviable on the final products, in the manner and subject to the terms and conditions stipulated therein. The manufacturer, in this case while removing the final product manufactured has adjusted against payment of excise duty on such final product a part or portion of the credit earned by him under the special scheme and what is sought to be really and in substance done is to inform the manufacturer that the adjustment he purported to have made was with an amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irety the enforcement of the Modvat Scheme. The question as to the relative nature of the provisions general or special has to be determined, with reference to the area and extent of their application either generally in all circumstances or specially in particular situations and not on the ground that one is a mere provision in the Act and the other is a provisions in the Rule. We are not also concerned in this case with any challenge to the inconsistency of a rule with any statutory provisions in the Act. 15.......The restricted operation of the provisions contained in Section 11A is found inherently in built due to the specification of the various categories of cases enumerated in the provision itself to be dealt with. The scheme of Modvat introduced for the first time in 1986 did not consider it necessary either to have its own period of limitation in built in the Rules nor has the enforcement of the scheme been made subject to Section 11A of the Act. The fact that even when an amendment was made on 6-10-1988, it was prospective in nature and the amendment was not given any retrospective effect indicates the intention unmistakably that the subsequent amendment should have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) cannot be said to be a good law any more. We are, therefore, of the considered opinion that provisions of Section 11B of the Act is not attracted in the case of Modvat which is governed by Rules 57A to 57P. Further, during the relevant period no limitation had been provided for availing of the Modvat credit and the amendment in Rule 57G prescribing the limit of six months was introduced on 29th June, 1995 which has prospective effect. Thus, the respondents were within their right to avail the shortfall in the Modvat credit at any time. 8. In view of the foregoing discussions, we answer the questions referred to us in favour of the assessee and against the Revenue. There will be no order as to costs." 5. In view of the above settled legal position of law the Cenvat credit cannot be denied on the ground of limitation in absence of any statutory time limit prescribed. 6. Therefore, the impugned order is not sustainable hence the same is set aside. Appeal is allowed". From the above decision of Hon'ble High Court as well as this Tribunal decision it can be seen that various judgments were passed which were relied upon in the above two decisions and it was consistent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain, some of the judgments are reproduced below: (i) In the case of Diya Systems (Management) (Supra) the Hon'ble Banglore Bench of Tribunal has passed the following decision: "3. I have heard the learned Counsel for the parties and perused the records. The only question which needs to be decided by me in all these three appeals is whether the rejection of refund claim by the authorities below mainly on the ground that the appellants were not registered under "Business Support Services" for the BPO activity and whether the refund claim for Rs. 20,600/- (Rupees Twenty Thousand Six Hundred only) pertaining to the bill issued by the BSNL is in conformity with Rule 4A of the Service Tax Rules, 1994 read with sub-rules (1) and (2) of Rule 9 of Cenvat Credit Rules, 2004 is legally justified or not? It is pertinent to note that the Commissioner (Appeals) in the impugned order has held that the appellant is an EOU and they are eligible for filing the refund claim on quarterly basis and it is not mandatory for an EOU to file refund claim on monthly basis. Further I find that it is undisputed that appellants are already registered with the department as a service provider under the taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Meters Ltd. v. CCE, Jaipur reported in 2010 (18) S.T.R. 490 (Tri.-Del.) it has been held that when the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of service tax on input services cannot be denied on the ground that service tax registration was not mentioned on the invoices. Further I also find that in these cases refund has been denied merely on technical lapses or non-compliance of minor procedural formality. In view of the aforesaid in my considered view, the impugned order is not sustainable in law and I set aside the impugned order by allowing all the three appeals of the appellant with consequential relief, if any." (ii) In the case of Imagination Technologies India Pvt Ltd. (supra) Mumbai Tribunal has passed the following order: "6. As regards the second issue regarding denial of CENVAT Credit on account of not indicating registration number of the input service provider on the invoices, this issue also has been settled by the decision of this Tribunal in the case of Secure Meters Ltd. (supra). In the said order, it was held that credit cannot be denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the above mentioned supplementary invoices, just because at the time of receipt of the input services, the input service providers were not registered and had not mentioned Service tax registration no. in the invoices. When the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of Service tax on the input services even if paid subsequently under supplementary invoices, cannot be denied. The impugned order, therefore, is not sustainable and the same is set aside. The appeal is allowed with consequential relief." (iv) In the case of R.R. Donnelley India Out Source Pvt. Ltd. (supra) Tribunal has passed the following decision: "6. After considering the submissions of both the parties and the perusal of the records and the judgments cited supra, I am of the opinion that the impugned order is not sustainable in law as the appellant has given sufficient documentary evidence and the decisions of the Tribunal in support of his claim. But the learned Commissioner has failed to consider those submissions and documents and also the judgments cited by the appellant i ..... 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