2010 (7) TMI 319 - AT - Service Tax

Tribunal allows service tax credit based on invoices not in factory name, penalty set aside under Cenvat Credit Rules

MODERN PETROFILS Versus COMMISSIONER OF C. EX., VADODARA

The Tribunal upheld the Commissioner's decision allowing the appellant to avail service tax credit based on invoices not in the name of their factory, ... Penalty - appellant availed credit of service tax - on the basis of invoices which were not in the name of their factory - invoice is in the name of head office, credit taken by the factory - Held that: - no allegation of non receipt of input service or the allegation of service not relatable to the factory and also in view of the fact that invoice was in the name of head office of the same factory and not in the name of some one else - appellants are eligible for the credit and suppression of facts and extended period are not invocable, the question of penalty does not arise - penalty imposed is also set aside - appeal filed by the party is allowed Issues:1. Admissibility of service tax credit based on invoices not in the name of factory.2. Imposition of penalty under Cenvat Credit Rules, 2004.Admissibility of service tax credit based on invoices not in the name of factory:The case involved the appellant availing credit of service tax amounting to Rs. 1,37,618/- during a specific period based on invoices not in the name of their factory. The Commissioner (Appeals) deemed this as a procedural omission and held the credit to be in order. The Revenue appealed against this decision, arguing that the credit was not admissible due to the invoices being in the name of the head office when the appellant had multiple factories. The Revenue contended that the proper procedure for multiple factories was to register the head office as a distributor of input service credit. However, the Tribunal upheld the Commissioner's decision, citing that there was no dispute regarding the receipt of services by the factory, making the credit admissible despite the invoices being in the name of the head office.Imposition of penalty under Cenvat Credit Rules, 2004:The appellant argued that since the demand was dropped by the Commissioner, no penalty should have been imposed. They relied on the decision in the case of Godrej Soaps to support this contention. The Tribunal considered the submissions and found that the Commissioner correctly followed the precedent set by the Tribunal in a similar case. The Commissioner's decision to drop the demand was upheld, as there was no dispute raised regarding the admissibility of the input service credit to the factory. The Tribunal concluded that the omission was a curable defect and not a suppression of fact. Therefore, the Tribunal set aside the penalty imposed under the Cenvat Credit Rules, 2004. Consequently, the appeal filed by the Revenue was rejected, and the appeal filed by the party was allowed.This detailed analysis of the judgment provides a comprehensive overview of the issues involved, the arguments presented by both parties, and the Tribunal's reasoning leading to the final decision.