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TMI Blog2024 (12) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit on the basis of those invoices amounting to Rs. 16,12,208/- was proposed to be recovered. 2. During the said course of verification itself, department also observed that the input service tax credit availed on the challans deposited against the Comptroller and Auditor General (C&AG) is also not permissible and is contrary to Rule 9(b) of Cenvat Credit Rules, 2004. Accordingly, the Cenvat credit availed on those challans amounting to Rs. 32,95,447/- was also alleged to have been wrongly availed and thus was proposed to be recovered. In view of those observations, the department issued a show cause notice bearing No. 19/2016-17 dated 4.11.2019 proposing the recovery of Cenvat credit of Rs. 49,07,655/- (Rs. 16,12,208/- + Rs. 32,95,447/-) along with the proportionate interest and the appropriate penalties. The said proposal was initially confirmed vide the order in original bearing No. 29/2019 dated 30th June 2021. Appeal against the said order has been rejected vide order in appeal No. 13/2023 dated 6.3.2023. Being aggrieved, the appellant is before this Tribunal. 3. We have heard learned Advocates and learned Authorized Representative for Revenue 4. Learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the mention that the Rule 9(1)(bb) of CCR has wrongly been invoked. The following decisions have been relied upon: (i) Ineos Stryolution India Ltd. Vs. CCE & ST, Vadodraa-1 - 2022 (3) TMI 319 - CESTAT Ahmedabad; (ii) Nissan Motor India Private Ltd. Vs. Commissioner of Service Tax, Chennai - 2019 (2) TMI 1299 - CESTAT Chennai; (iii) Commissioner of C. EX., Jallandhar Vs. Ambika Overseas - 2010 (7) TMI 330 - CESTAT, New Delhi; (iv) Swami Construction Vs. CCE & ST - Vadodar-1 - 2022 (6) TMI 820 - CESTAT Ahmedabad. 6. Finally, it is submitted that the show cause notice dated 4.11.2019 has questioned the demand for the period from October 2014 to January 2017. Thus, the entire demand is beyond the normal limit prescribed under Section 11A of the Excise Act. Hence the show cause notice is barred by limitation. The confirmation of demand based on said show cause notice is not sustainable. Therefore, the order under challenge is liable to be set aside on this ground as well. The following decisions are relied upon: (i) Commissioner, Central Excise and Customs and Anr. Vs. Reliance Industries Ltd. And Commissioner of Central Excise and Service Tax Vs. Reliance In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit of an amount of Rs. 32,95,447/- alleging that the challans deposited against C&AG report based whereupon the said Cenvat credit has been availed, are not the prescribed documents as per Rule 9(1)(bb) of CCR, 2004. The issue wise findings are as under:- Issue No. 1 9. The manufacturer of the goods or the provider of services are eligible to avail Cenvat credit in terms of Rule 3 of CCR, 2004, which provides that a manufacturer/service provider shall be allowed to take Cenvat credit of the central excise duty/service tax paid on any input or capital goods used by the manufacturer or any Input service received by the manufacturer/service provider. Admittedly there is no dispute on use of said input services in or in relation to manufacture of final product cleared by the appellant or in providing output service. Hence I hold that substantive right provided for in Rule 3 cannot be denied by resorting to procedural requirements prescribed under Rule 9, as has been done in the Instant case. It is Important to now peruse Rule 9 of the Credit Rules, which specifies the documents on basis of which credit can be taken. It reads as under: RULE 9. Documents and accounts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered and address of the issuer are available in the invoice. Further reference is also made to Rule 4A of the Service Tax Rules, which provides that any person who provides taxable service, on completion of the said service, shall issue an invoice or bill not later than thirty days from the date of completion of such taxable service or receipt of payment, whichever is earlier. The relevant extract is as under : RULE 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan. - (1) Every person providing taxable service shall, not later than thirty days from the date of completion of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier, issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him in respect of such taxable service provided or agreed to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely :- (i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit cannot be denied on mere procedural irregularities. 12. Substantial benefit cannot be denied merely on account of procedural infractions in absence of any allegation with respect to eligibility of service as an input service and when substantive compliance laid down in the statute for availing the credit has been fulfilled particularly when there is no dispute as regards receipt of goods/services, payment of duty/tax or eligibility to take credit in respect of such goods/input services, denying the substantive benefit of availment of CENVAT Credit would be bad in law in this regard. Reliance on also placed on the following decisions - Mardia Chemicals Ltd. vs. CCE (2003 (158) ELT 378 (T) Deepthi Insulated Cables Ltd vs. CCE [2000 (123) ELT 933(T). Krishna Cold Roller Section vs. Commissioner [1996 (88) ELT 98 (T) and Shriji Chemicals vs. Collector (1998 (98) ELT 375 (T)), wherein it has consistently been held that mere procedural infractions, technicalities and documentary infirmities cannot be the ground for denial of credit when there is substantial compliance of the procedure laid down by the statute. Although these decisions have been passed in respect of CENVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi. In the light of this discussion, the order directing reversal of Cenvat credit of Rs. 16,12,208/- is therefore, held liable to be set aside. Issue No. 2 15. The Cenvat credit of Rs. 32,95,447/- has been denied in reference to Rule 9(1)(bb) of CCR Rules alleging that the challans deposited against C&AG report are not prescribed document under the said rule. I observe that apparently the entire liability of service tax was paid by the appellant under Reverse Charge Mechanism vide the said challans pursuant to C&AG audit report. The said challans evidencing the payment of service tax are enclosed on record. Once the payment of tax is made under RCM, it is Rule 9(1)(e) as shall be relevant. 16. Rule 9(1)(bb) of CCR which provides that Cenvat shall be taken by manufacturer/service provider/input service distributor on the basis of supplementary invoices/bill or challan issued by the provider of output service, except where the additional amount of tax be recovered from the provider of service on account of non-levy or non-payment or short levy or short payment by reason or fraud or collusion or suppression of facts with intent to evade the payment of service tax. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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