TMI Blog2024 (5) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have failed to produce the documents as specified in Notification No 01/2009-ST. There are no hesitation in accepting the contention of Commissioner, to the effect that the exemption notifications need to be strictly construed and it is for the person claiming the benefit of exemption to satisfy with regards to his eligibility to the exemption. From perusal of the invoices it is quite evident that the name of the recipient of services is clearly mentioned as Kataria Carriers, H O 133/198 T P Nagar, Kanpur -208023 and description is stated as Goods Transport Vehicle (Trailers) Hire Charges . Appellant has substantially complied with the conditions as laid down by the Notification No 1/2009-ST and the benefit of this notification cannot be denied to them. For other periods for which this demand has been confirmed even the notification do not lay down this condition and hence the benefit of same cannot be denied. Thus, the demand made in the impugned order on this ground needs to be set aside. Whether the CENVAT Credit was admissible to them on the Document Charges, terminal handling charges and bill of lading charges? - HELD THAT:- Undisputedly appellant is a provider of taxable s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74,952/- (Rupees Seventy Two Lakhs Seventy Four Thousand Nine Hundred Fifty Two only) received by M/s Pinkcity Logistics Ltd. V 5-04, Ansal s Garg Enclave, 122/235, Sarojini Nagar, Kanpur for Vehicle hire charges for the period from F.Y.2008-09 to F.Y.2012-13, should be treated as taxable value for providing service of Supply of Tangible Goods Services as per section 65(105)(zzzzi) and for providing declared Service as per section 66E(f) of the Finance Act, 1994, and accordingly I confirm the demand of Service Tax (including Education Cess and Secondary Higher Education Cess) amounting to Rs.7,83,274/- (Rupees Seven Lakhs Eighty Three Thousand Two Hundred Seventy Four) and order for its recovery under proviso to Section 73(1) of the Finance Act, 1994 (as amended from time to time) for the reasons detailed here-in-above. II. I confirm the demand of wrongly availed Cenvat Credit amounting to Rs.2,61,15,096/- (Rupees Two Crores Sixty One Lakhs Fifteen Thousand Ninty Six Only) by the party during the period from F.Y.2008-09 to F.Y.2012-13, and order for its recovery under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(1) of the Finance Act, 1994. III. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012-13 comes to the tune of Rs. 72,74,952/-, on which service tax under the taxable category of Supply of Tangible Goods Services was payable as detailed in table below: S No. Period Amount of rent received Rate of Service Tax Service Tax 1 2008-09 5,02,305/- 12.36 62,085/- 2 2009-10 17,14,594/- 10.30 1,76,603/- 3 2010-11 15,19,494/- 10.30 1,56,508/- 4 2011-12 23,92,612/- 10.30 2,46,439/- 5 2012-13 11,45,947/- 12.36 141.639/- Total 72,74,952/- 7,83,274/- 2.3 Further, during the course of audit and scrutiny of invoices on the basis of which the Cenvat Credit was taken by the party, it was also noticed that the party was availing Cenvat Credit on the different heads mentioned on the invoices namely documentation charges terminal handling charges and bill of lading charges on invoices/debit notes. These heads are in respect of charges related to Custom House Agent Services. Hence, it appears that the Cenvat Credit on said charges would be available for output service of Custom House Agent Service. The detail of such inadmissible credit taken by the appellant is indicated in table below: (Figures in Rs.) Sl. No Period Cenvat Taken Cenvat utilized 1 2008-09 53,86,547/- 53,86,547/- 2 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time) for the reasons detailed here-in-above (ii) the Cenvat Credit amounting to Rs.2,61,15,096/- (Rupees Two Crores Sixty One Lakhs Fifteen Thousand Ninty Six Only) wrongly availed by them during the period from F.Y.2008-09 to F.Y.2012-13, should not be demanded and SCN 5l recovered under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(1) of the Finance Act, 1994. (iii) Interest should not be demanded / recovered from them on the amounts demanded in Para 10(i) 10(ii) above under the provisions of Section 75 of chapter V of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004 (iv) Penalty should not be imposed upon them under Section 76 of the Finance Act 1994, for the failure to make the payment of Service Tax in prescribed time limit (v) Penalty should not be imposed upon them under Section 77(2) of the Finance Act, 1994 for the failure to self-assess the correct taxable value (vi) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for suppressing the value of taxable services provided by them under the category of Supply of Tangible Goods Service with intent to evade payment of service tax (vii) Penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces under Rule 2(l) of CCR,04; Decisions relied on- Hema Engineering Industries Ltd.[2016 (46) S.T.R. 439 (Tri. - Del.)]; Fine Care Biosystems [2010 (17) S.T.R. 168 (Tri.- Ahmd.)] cenvat When registered procedural tax credit has under mistake) been should CHA paid which not service; be has apparently denied never under been merely wrong objected because category by dept. appellant (which is hence, not a CCR,04 nowhere states registration as a condition precedent for availing cenvat credit as held in Samsung India Electronics Ltd.[2017 (52) S.T.R. 497 (Tri. - All.)]; Appellant got subsequently registered for CHA Service on 12.7.2013 Respondent has without considering submissions of appellant without giving any specific submission on case laws relied on passed a non-speaking order which is invalid in law. Without prejudice to above submissions, appellant entitled to cum tax benefit on rental receipts of vehicle as service tax not collected separately because appellant was under bonafide belief of exemption Extended period of limitation should not be invoked as- matter involves interpretation; all transactions are recorded in books of accounts Regularly filed returns Reliance is place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d services-- The following shall constitute declared services, namely: (f) transfer of goods by way of hiring., leasing, licensing or in any such manner without transfer of right to use such goods: 35. I notice that the departmental allegation is based on the fact that party has rented out some of their trailers (vehicles) to Ms Kataria Carriers, Kanpur and have received rent from M/s Kataria Carriers, Kanpur for such renting of trailers (vehicles) by them and the same has been shown in the Balance Sheets as vehicle hire charges received. From the ST-3 returns filed by the party for the period from F.Y.2008-09 to F.Y.2012-13, it was observed that the said party was not registered under the said category of taxable service and was not discharging the applicable service tax on the income received from the said activity 36. The department, therefore, concluded that hat the activity of supply of trailers (vehicles) to M's Kataria Carriers, Kanpur without giving legal right of possession and effective control is taxable under Section 65 (105) (zzzzj) of the Finance Act, 1994 (till 30.06.2012) and under Section 66E(f) of the Finance Act, 1994 (w.e.f. 1.07.2012) and that the party has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.29/2008- Service Tax, dated the 29thJune, 2008, published in the Gazette of India Extraordinary, vide G.S.R.482 (E), dated the 29th June, 2008, except as things done or omitted o be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services specified in sub-clauses (j), (k), (zr), (zza), (zzb), (zzzf). (zzzq) and (zzzzi) of clause (105) of section 65 of the Finance Act, provided by any person to, a goods transport agency for use by the said goods transport agency to provide any service, referred to in sub-clause (zzp) of clause (105) of section 65 of the Finance Act, to a customer in relation to transport of goods by road, from the whole of the service tax leviable thereon under section 66 of the Finance Act subject to the condition that the invoice issued by such service provider, providing services should mention the name and address of the goods transport agency and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the Notification No. 12009 - ST dated 5th January, 2009 which provides that the invoice issued by such service provider providing service should mention the name and address of the goods transport agency and also the name and date of consignment note, by whatever name called, issued in his behalf. I find that in case of U.G. SUGAR INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., MEERUT-lI reported in 2011 (266) E.L T. 339 (Tri. - Del.), it was held that mere raising of defence itself does not amount to producing the proof in that regard. once the defence was raised by the appellants, it was essentially for the appellants to lead necessary evidence in that regard. mere raising of plea in answer to the show cause notice does not by itself mean the proof of correctness of such plea When the plea relates to certain factual aspect, it is absolutely necessary for the person raising such plea to make the same good by producing sufficient evidence in support of such plea 41 In the instant case, I observe that there is no documentary evidence supporting the contention of the party, and accordingly, I hold that the activity of supply of trailers (vehicles) to M/s Kataria Cariers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of technical term used in a particular entry, has acquired some other meaning in market parlance. 44. In view of the above analysis, I find that party has failed to established their case with substantial evidential support, thus, the allegation of the department that the activity of supply of trailers (vehicles) to M/s Kataria Carriers, Kanpur, without giving legal right of possession and effective control, is taxable under Section 65 (105) (zzzz) of the Finance Act, 1994 (till 30.06.2012) and under Section 66E (f) of the Finance Act, 1994 (w.e.f. 1.07.2012), is upheld. 4.4 From the above and submissions made by the appellant before us it is quite evident that there is no dispute in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No 1/2009-ST and the benefit of this notification cannot be denied to them. For other periods for which this demand has been confirmed even the notification do not lay down this condition and hence the benefit of same cannot be denied. Thus in our view the demand made in the impugned order on this ground needs to be set aside. 4.6 On the issue at (ii) impugned order records the findings as follow: 45. Now coming to the second issue, I find that the departmental case is that during the course of audit and scrutiny of invoices on the basis of which the Cenvat Credit was taken by the party, it was noticed by the officers that the party was availing Cenvat Credit on the different heads mentioned on the invoices namely documentation charges, terminal handling charges and bill of lading charges on invoices/debit notes. These heads actually are in respect of charges related to Custom House Agent Services. The party was providing services in capacity of Clearing and Forwarding Agent, defined under Section 65 (25) of the Finance Act, 1994 and not in capacity of Customs House Agent, defined under Section 65 (35) ibid. Hence it appears that the Cenvat Credit on said charges would not be av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y based on the inclusive part of the definition of input services. The argument put forth by the party is that the inclusive part expands the scope of main definition; that the inclusive part can cover items which are not getting covered in main part of definition; that it is also well settled hat in relation to widens the scope of definition; that it is not restrictive; that input services which have only remote or no nexus with output services or manufacture of goods will get covered so long as these are related to activities of business. 49. On going through the definition as provided in Rule 2 (l) of the Central Excise Rules, 2004, I observe that in the (i) part of definition itself the issue becomes amply clear. The provision stipulates that i) used by a provider of taxable service for providing an output service or , From the plain reading of the first leg of the said definition, it is clear that the different heads mentioned on the invoices are evidently not being used by the party for providing the output service, hence, not covered under the first part of the said definition of the input service . The first part of the definition is restrictive in scope as it covers input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of final product, the service would not qualifty to be an input service under Rule 2() of the 2004 Rules. 53 I also find that the department in the impugned show cause notice has alleged that these heads are in respect of charges related to Custom House Agent Services. The party has contended that that the documentation charges, bill of lading fees clearly falls within the ambit of input services, as it has been consumed in the output service, but at the same time, applied for the service tax registration under the category of Customs House Agent and were granted registration on 12.07.13. I observe that this action of party itself confirms departmental contention that the credit taken and utilised by the party on documentation charges, terminal handling charges and bill of lading charges are not in the eligible category of inputs for the output services as provided by the party such as Clearing Forwarding Agent Service (2) Business Auxiliary Services (3) Transport Of Goods by Road. 54 Accordingly, I hold that the credit on documentation charges, terminal handing charges and bill of lading charges availed by the party does not merit to be classifiable as input service as per requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be used for providing a particular taxable. The phrase used in the definition is used by a provider of taxable service for providing an output service . From perusal of the above phrase, it is quite evident that CENVAT Credit is admissible in respect of any input service subject to following conditions: input service is used by a provider of taxable service; for providing an output service. Undisputedly appellant is a provider of taxable service and is registered with the department for providing output services. The term output service has been defined by Rule 2 (p) of the CENVAT Credit Rules, 2004 as follows: output service means any taxable service provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly; Having satisfied the above conditions as laid down by the main clause of the definition in our view the appellant would be eligible for CENVAT Credit in respect of these services, even without reference to the inclusive part of the definition. Appellant has contested the denial of CENVAT Credit before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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