2014 (2) TMI 639 - AT - Central Excise

Tribunal Upholds Denial of CENVAT Credit for Trading Services

The tribunal upheld the denial of CENVAT Credit for services used in trading activities and for credit distributed by an unregistered Input Service ... Denial of CENVAT Credit - ineligible credit - Input service distributor (ISD) - Interest u/s 11AB - Credit on Insurance policy - Held that:- CENVAT Credit taken on the Insurance Policy, he submits that Shri Newton Misquitta, Senior Manger (Accounts) had confirmed that the Insurance Policy taken pertained to insurance of empty containers in respect of imported vitrified tiles. Similarly, marine cargo policies pertained to mainly imports of vitrified tiles, which were traded by the appellant. Again some of the policies pertained to insurance of their showrooms located all over India, which was used for sale of the imported goods as well as domestically manufactured goods. Thus, it is clear that the appellant took ineligible CENVAT Credit on the insurance services received by them - availment of CENVAT Credit on ineligible documents, the adjudicating authority has observed that the documents on the strength of which credit was taken are not proper documents and these facts were also admitted by the employees and, therefore, the credit taken on ineligible documents needs to be reversed. Service Tax credit can be distributed only if the services were received at the manufacturing premises and if it is received elsewhere, it is not permissible to avail of the Service Tax credit. Input Service Distribution scheme is a special scheme and if anyone wants to avail the benefit thereof, the terms and condition should be complied with completely. From the statements of the officials of the appellant firm, it clearly emerges that the credit was distributed by the Head Office without any registration and without ascertaining the receipt of the services at the Alibag factory. Services received at the depots were also distributed to the Alibag factory and also services received at the other factories of the appellant. Thus, as regards the denial of CENVAT Credit of ₹ 2.92 Crore, the appellant is not prima facie eligible for the benefit of the same - Following decision of SQL Star International Ltd. Vs. Commissioner of Customs, Hyderabad [2011 (7) TMI 868 - Andhra Pradesh High Court] - Conditional stay granted. Issues Involved:1. Denial of CENVAT Credit for services used in trading activities.2. Distribution of CENVAT Credit by an unregistered Head Office as Input Service Distributor (ISD).3. CENVAT Credit taken on improper documents.4. CENVAT Credit taken for services unrelated to manufacturing activities.5. Demands for recovery of ineligible CENVAT Credit.Issue-wise Detailed Analysis:1. Denial of CENVAT Credit for Services Used in Trading Activities:The appellant availed CENVAT Credit on services used for trading activities, including construction of godowns and insurance policies. The tribunal held that since trading was not considered a service prior to 2011, the appellant could not have taken credit for trading activities. The construction services were mainly used for storage of imported goods, and thus, the credit was not applicable for manufacturing activities. Similarly, insurance services largely pertained to traded goods, making the credit ineligible for manufacturing activities.2. Distribution of CENVAT Credit by an Unregistered Head Office as ISD:The appellant's Head Office distributed CENVAT Credit without being registered as an Input Service Distributor (ISD). The tribunal noted that credit distribution by an unregistered ISD violates the Cenvat Credit Rules. The credit was distributed without ascertaining the receipt of services at the Alibag factory, and services received at depots and other factories were also included. The tribunal cited previous cases supporting the view that credit can only be distributed if services are received at the manufacturing premises.3. CENVAT Credit Taken on Improper Documents:The appellant claimed that the department did not specify discrepancies in the documents used to take credit. The tribunal acknowledged this contention but stated that verification of documents could only be done at the final hearing stage. The adjudicating authority observed that credit was taken on ineligible documents, as admitted by the appellant's employees.4. CENVAT Credit Taken for Services Unrelated to Manufacturing Activities:The tribunal noted that the appellant took CENVAT Credit for services such as club membership fees, pest control at directors' residences, and public relation services, which had no nexus with manufacturing activities. The appellant did not press this issue for the purpose of stay.5. Demands for Recovery of Ineligible CENVAT Credit:The tribunal found that the appellant availed ineligible CENVAT Credit amounting to Rs. 8,80,80,062/- and Rs. 96,63,002/-. The appellant admitted to taking credit without proper documents and for services used in trading activities. The tribunal directed the appellant to make a pre-deposit of Rs. 3 crore, in addition to Rs. 3.23 crore already paid, to stay the recovery of the balance dues during the appeal's pendency.Conclusion:The tribunal upheld the denial of CENVAT Credit for services used in trading activities and for credit distributed by an unregistered ISD. It acknowledged the need for document verification at the final hearing stage but found that the appellant had not made a prima facie case for stay. The appellant was directed to make a pre-deposit to stay the recovery of the balance dues.