2015 (6) TMI 79 - AT - Service Tax

Tribunal Upholds Tax Demand and Penalties, Rejects Appellant's Arguments

SKF India Ltd, SKF India Ltd (ISD) Versus Commissioner of Central Excise, Pune-I

SKF India Ltd, SKF India Ltd (ISD) Versus Commissioner of Central Excise, Pune-I - 2016 (41) S.T.R. 737 (Tri. - Mumbai) Issues Involved:1. Jurisdiction of the show cause notice.2. Assessment of distribution of credit by the Input Service Distributor (ISD).3. Applicability of Rule 6(5) of the Cenvat Credit Rules, 2004.4. Recalculation of demand based on Rule 6(3D) effective from 1.4.2011.5. Time-barred demand and extended period of limitation.6. Penalty imposed under Rule 15A of the Cenvat Credit Rules.Issue-wise Detailed Analysis:1. Jurisdiction of the Show Cause Notice:The appellant contended that the show cause notice issued to the Pune factory was without jurisdiction and should have been issued to the ISD. The Tribunal rejected this contention, stating that both the ISD and the factory are located in the same premises and are under the jurisdiction of the same Commissioner. The two registrations, one for excise and the other as an ISD, do not make a difference as both registrations are for the same legal entity.2. Assessment of Distribution of Credit by the ISD:The appellant argued that credit cannot be denied unless the assessment of distribution of credit made at the ISD is set aside. The Tribunal noted that the ISD is not an assessee under the Service Tax Law and does not provide any service or pay any service tax as a provider of output service. Therefore, there is no question of assessment or self-assessment. The Tribunal rejected the appellant's contention, stating that the availment of credit and its distribution have been challenged in the present show cause notice, and the factory and ISD are one and the same legal entity.3. Applicability of Rule 6(5) of the Cenvat Credit Rules, 2004:The appellant submitted that credit relating to categories of services specified in Rule 6(5) should be allowed. The Tribunal rejected this contention, stating that Rule 6(5) cannot be read in isolation but has to be read in the overall scheme of the Cenvat Credit Rules, which are with reference to manufacturing activity or providing of output service, not trading activities.4. Recalculation of Demand Based on Rule 6(3D) Effective from 1.4.2011:The appellant argued that the demand needs to be recomputed based on the provisions of Rule 6(3D) made effective from 1.4.2011. The Tribunal, referring to the Mercedes Benz case, held that trading was not a service and cannot be considered as an exempted service before 1.4.2011. Therefore, the substantive provision itself did not exist before that date, and the formula prescribed under Rule 6(3D) cannot be applied retrospectively.5. Time-barred Demand and Extended Period of Limitation:The appellant contended that the demand is time-barred as the issue relates to the interpretation of statutory provisions and there was a bona fide belief that no cenvat credit was to be reversed for trading activity up to March 2011. The Tribunal rejected this contention, stating that the appellant did not indicate in the returns that the credit relating to trading activities was also being availed. This is a clear case of suppression, and the extended period of limitation has been rightly invoked.6. Penalty Imposed Under Rule 15A of the Cenvat Credit Rules:The Tribunal upheld the penalty of Rs. 5,000 imposed on the appellant as an ISD under Rule 15A of the Cenvat Credit Rules. The returns filed by the appellant as ISD were not in accordance with the law, and the declaration made in the ST-3 returns was not correct.Conclusion:The Tribunal dismissed both the appeals, finding no merit in the contentions raised by the appellant. The Tribunal upheld the demand, interest, and penalties imposed by the original authority.