2025 (11) TMI 1098 - AT - Service Tax

Adjudicating Authority erred taxing recovered bad debts certified in CA-audited accounts; demand set aside, matter remanded

M/s Hindustan Tin Works Ltd. Versus Commissioner of CGST And Service Tax, New Delhi

The Tribunal held that the Adjudicating Authority erred in disregarding the CA-certified audited accounts and wrongly demanded tax on income clearly ... Disallowance of CENVAT credit - Mismatch of credi taken as per Credit Register and SCN & order-in-original - sample cenvat credit taking documents were submitted to the Adjudicating Authority along with Cenvat Credit Register - Cenvat Credit Register was not certified by the Chartered Accountant - non-consideration of the documents relied on by the appellant - violation of principles of natural justice - HELD THAT:- The Adjudicating Authority has erred in ignoring the fact that the Chartered Accountant’s Certificate is based on the audited accounts duly certified by the Auditors and filed with the Registrar of Companies. As is evident from the provisions of Section 66D(n)(i), the income by way of interest is specifically included therein and, therefore, demand made is contrary to the provisions of the Act and hence, unsustainable. The balances written back represents bad debts written off in previous year but recovered subsequently. This is purely a financial transaction of dealing with debtors and bad debts are written off in the Profit & Loss Account as loss but when recovered subsequently, the amount is written back to the P&L Account as income. In Grey Wordwide (I) Pvt. Ltd. [2014 (9) TMI 180 - CESTAT MUMBAI], the Mumbai Bench of the Tribunal has held that these amounts cannot be construed as consideration received towards services rendered and therefore, the same cannot be sustained in law - Similarly in DSP Merrill Lynch Ltd. Vs. CST, Mumbai [2016 (2) TMI 221 - CESTAT MUMBAI], referring to the write back of the credit balances in payable account, Bench observed that these activities, as the very nomenclature shows are actual adjustments of expenses/debts etc. and there is no service involved in these activities, therefore, no service tax is payable on these activities. In view of these decisions of the Tribunal, we hold that the demand on this count cannot be sustained and is accordingly set aside. Since the Adjudicating Authority has failed to consider the documents and passed the order in haste on the very same day when the documents were produced, it is evident of the fact that the same have not been considered. Also from the perusal of the impugned orders, the Authorities have repeatedly observed that the appellant has not provided the cenvat availment related inward supplies invoices, which are applicable to avail such credits or supplies under reverse charge. However, the submissions of the learned counsel for the appellant is that the documents have been placed on record, on the date of hearing on 19.12.2023. Non-consideration of the documents relied on by the appellant amounts to violation of principle of natural justice resulting in denial of effective hearing to the appellant. In the circumstances, the only remedy is to remand the matter back to the Adjudicating Authority to decide the issues, so referred afresh. Appeal allowed by way of remand. ISSUES PRESENTED AND CONSIDERED 1. Whether the entire Cenvat credit claimed for the period October 2016-June 2017 can be disallowed where the appellant produced Cenvat Credit Register, sample invoices and Chartered Accountant's certificate but the Adjudicating Authority passed the order on the same day without considering those documents. 2. Whether the burden of proof under Rule 9(5) of the Cenvat Credit Rules, 2004 absolves the adjudicating authority from considering audited records and Chartered Accountant's certificates certifying Cenvat balances and invoice/payment particulars. 3. Whether interest income on bank fixed deposits and inter-corporate deposits is taxable as a service or falls within the Negative List under Section 66D(n)(i). 4. Whether amounts representing balances written back (recoveries of previously written-off bad debts, volume discounts, rate differences, etc.) constitute taxable consideration for services. 5. Whether profit on sale of used capital assets (shown as zero in books) and certain alleged reverse-charge expenses are liable to service tax where supporting proof (bank statements, invoices, payment receipts) and Chartered Accountant's certification were produced but not considered. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Disallowance of Entire Cenvat Credit; Remand Legal framework: Cenvat Credit Rules, 2004; obligation on adjudicating authority to examine evidence submitted by assessee (Cenvat Credit Register, sample invoices, Chartered Accountant's certificate) before confirming demand. Precedent treatment: No new precedent overruled; courts/tribunals require consideration of documentary evidence placed before authority. Interpretation and reasoning: The Court found that the Adjudicating Authority passed the Order-in-original on the same day the appellant produced voluminous documentary evidence, without any reference to or verification of those documents. The order used figures from service tax returns rather than the Cenvat Credit Register, producing a discrepancy in amounts. Failure to consider documents produced at hearing amounts to non-application of mind and procedural impropriety. Ratio vs. Obiter: Ratio - where material documents are produced before the adjudicator and the order is passed without consideration, the proper remedy is remand for fresh decision after taking those documents on record. Obiter - none additional. Conclusions: The matter is remanded to the Adjudicating Authority for de novo consideration of Cenvat credit claim after verifying the Cenvat Credit Register, sample invoices and Chartered Accountant's certificate; confirmation of the entire disallowance is set aside insofar as it rests on failure to consider evidence. Issue 2 - Burden under Rule 9(5) CCR and Treatment of Chartered Accountant's Certificate Legal framework: Rule 9(5), CCR 2004 places initial burden on claimant to prove admissibility of credit by producing invoices/payment details; however authorities must verify and consider audited records and professional certification. Precedent treatment: Authorities may draw adverse inference for non-production but cannot ignore produced audited records or Chartered Accountant's certificates without inquiry. Interpretation and reasoning: The Tribunal found that the Adjudicating Authority erred in rejecting the Chartered Accountant's certificate on the ground it was based on ledger accounts and not bank statements, when the certificate was founded on audited accounts certified by auditors and filed with the Registrar of Companies. Mere invocation of Rule 9(5) does not permit dismissal without consideration; evidentiary weight of CA certificate and audited accounts must be assessed, not ignored. Ratio vs. Obiter: Ratio - adjudicator must consider CA-certified audited documents and cannot refuse credit solely on asserted non-production when such certified documents are produced; Obiter - weight to be accorded rests with the fact-finder on remand. Conclusions: The findings rejecting CA certification and audited records are unsustainable; adjudicator must reassess admissibility of credit after proper verification. Issue 3 - Taxability of Interest Income: Negative List under Section 66D(n)(i) Legal framework: Section 66D(n)(i) - Negative List explicitly excludes services 'by way of deposits, loans or advances, in so far as the consideration is represented by way of interest or discount.' Precedent treatment: Statutory text decisive; no contrary binding tribunal decision relied upon to displace the Negative List categorization. Interpretation and reasoning: The Court held that interest on fixed deposits and inter-corporate deposits falls squarely within Section 66D(n)(i). The Adjudicating Authority's reliance on absence of bank statements was misplaced where the CA certificate was based on audited accounts filed with statutory authorities. The statutory Negative List, coupled with audited certification, defeats the demand. Ratio vs. Obiter: Ratio - interest income of the character described is not taxable as service under the Negative List; Obiter - procedural compliance (bank statements) cannot override statutory classification where audited records substantiate the position. Conclusions: Demand of service tax on interest income is unsustainable and set aside. Issue 4 - Taxability of Balances Written Back (Recovered Bad Debts, Volume Discounts, Rate Differences) Legal framework: Service tax liability arises when there is consideration for services; accounting write-backs reflect financial adjustments rather than consideration for service. Precedent treatment: Tribunal decisions (referred to) held that write-backs and credit balance recoveries are not consideration for services and thus not liable to service tax. Interpretation and reasoning: Applying earlier tribunal reasoning, the Court found balances written back are adjustments of past losses/expenses and not receipts for services rendered. Such amounts are financial/accounting adjustments and do not denote consideration flowing for a service; hence they fall outside taxable ambit. Ratio vs. Obiter: Ratio - amounts representing write-backs of previously written-off debts/adjustments do not constitute taxable consideration for services; follows prior tribunal holdings. Conclusions: Demand of service tax on balances written back is set aside. Issue 5 - Profit on Sale of Fixed Assets and Reverse-Charge Expenses; Need for Verification and Remand Legal framework: Taxability of sale of used capital assets depends on whether proceeds are consideration for service; reverse charge liability depends on nature of expense and proof of tax paid under reverse charge mechanism; Rule 9(5) / evidentiary requirements for Cenvat. Precedent treatment: No direct overruling; reliance on principle that proof of payment and invoices is necessary to sustain demand; CA certificates and audited accounts are relevant evidence. Interpretation and reasoning: The Court observed that authorities confirmed demand for profit on sale of fixed assets solely for lack of proof of receipt of payment and confirmed reverse-charge demands without considering sample invoices and CA certifications provided. Given the procedural lapses (non-consideration of documents) and the necessity for primary verification of invoices/payments, these aspects require fresh adjudication. Ratio vs. Obiter: Ratio - where the adjudication proceeds without considering produced evidence relating to sale proceeds or reverse-charge payments, issues must be remanded for verification; Obiter - nature of specific expenses (e.g., sales promotion, pest control, transport) may not attract reverse charge but factual inquiry is necessary. Conclusions: Demands relating to profit on sale of fixed assets and alleged reverse-charge expenses are remitted to the Adjudicating Authority for fresh adjudication after proper verification of the CA-certified invoices, bank/payment proofs and supporting documents. Cross-References and Procedural Note Where the Adjudicating Authority fails to consider substantial documentary evidence produced on the date of hearing, such failure violates principles of natural justice and amounts to denial of effective hearing; remedy is remand for de novo consideration. The Court allowed appeals in part (interest income and write-backs set aside) and remanded remaining quantification and admissibility issues for fresh decision with direction to apply mindfully and verify CA-certified records.