2024 (5) TMI 1436 - AT - Service Tax

Service tax demand on consulting engineer services set aside due to limitation bar and procedural lapses

SEGMENTAL CONSULTING & INFRASTRUCTURE ADVISORY PVT LTD Versus COMMISSIONER OF CGST & CENTRAL EXCISE-DELHI WEST

The CESTAT New Delhi allowed the appeal, setting aside the original order demanding service tax on consulting engineer services. The tribunal held that ... Liability to pay service tax on Consulting Engineer Services - wrongly availed the Cenvat credit without support of input documents - Whether the extended period of limitation has wrongly been invoked while issuing the show cause notice - HELD THAT:- Allegations of improper documents/ invoices for availing the Cenvat credit, we follow the proviso to Rule 9 of Cenvat Credit Rules, 2004. The proviso clarifies that in case all the particular mentioned in clause (a) to (g) of Rule 9 of Cenvat Credit Rules, 2004 are otherwise available on the documents, and submitted same is sufficient for availment of Cenvat Credit as per clause 9(f). An invoice / bill or challan issued by the provider of input service is a relevant document. Proviso (2) reveals that “No Cenvat credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax rules, 1994, as the case may be. All these particulars are contained in the documents provided by appellant for availing credit. The invoice has not been considered by the department while issuing the show cause notice as well as by the adjudicating authority for the sole reason that the appellant was not find existing at the address which is mentioned in the invoice. From the appellant’s letter given to the department, it is very much apparent on record that the appellant was shifting the office premises. Hence, it is not a case of obtaining fake registration at false address. Otherwise also, the objection about the address of an existing registered service provider is nothing but a procedural lapse. Substantial benefit of availing of Cenvat credit could not have been denied on the grounds of procedural lapse. Resultantly, we hold that the Cenvat credit was rightly availed by the appellant based on invoices. Invocation of extended period, we observe that admittedly the appellant was filing regular ST-3 returns The department cannot allege suppression of facts with an intent to evade tax was to be produced by the department. But same has not been produced. Relying upon the decision of Hon’ble Supreme Court in the case of Continental Foundation Jt. Venture vs Commissioner of Central Excise, [2007 (8) TMI 11 - SUPREME COURT], we hold that extended period has wrongly been invoked. Thus, we hold that issue is no more res integra and stand already decided by this Bench in its Final Order No. 50857-50858/2023 dated 10.07.2023. The appellant is held not liable for any service tax liability as is alleged. Cenvat Credit availed is held as proportionately availed. The demand is held to have been hit by bar of limitation. The findings in the Order-in-Original as has been challenged in the present appeal are contrary, hence the said order is hereby set aside. Consequent thereto, the appeal is hereby allowed. Issues Involved:The issues involved in the judgment are:1. Whether the appellant is liable to pay service tax on Consulting Engineer Services rendered by the appellant.2. Whether the appellants have wrongly availed the Cenvat credit without support of input documents and, as such, the same is recoverable from the appellants.3. Whether the extended period of limitation has wrongly been invoked while issuing the show cause notice.Issue 1: Liability to Pay Service TaxThe appellant provided Consulting Engineering services in Jammu and Karnataka for the construction of roads. The service circular No. 14/2004 clarified that Service Tax is not applicable to services in Jammu and Kashmir. Mega Notification No. 25/2012 exempts certain services, including construction of roads for public use. The services provided by the appellants fall under this exemption, and thus, the service tax liability was held to be wrongly imposed based on findings from a previous order.Issue 2: Cenvat Credit AvailmentThe appellant's invoices were deemed improper for availing Cenvat credit as the registered premises did not match the addresses on the invoices. However, it was clarified that as long as all required particulars are available on the documents, they are sufficient for Cenvat Credit availment. The appellant's shifting of office premises was a procedural lapse, not a case of fake registration. The Cenvat credit was deemed rightly availed based on the invoices submitted.Issue 3: Extended Period of LimitationThe department invoked the extended period of limitation, alleging suppression of facts by the appellant. However, as the appellant was filing regular ST-3 returns, the extended period was held to have been wrongly invoked. The absence of evidence to support the allegation of suppression of facts led to the conclusion that the extended period was not justified.In conclusion, the Tribunal found that the issues raised in the present appeal had already been decided in a previous Final Order in favor of the appellant. The appellant was held not liable for the alleged service tax liability, and the Cenvat Credit availed was deemed proportionate. The demand was considered time-barred, and the impugned order was set aside, leading to the allowance of the appeal.