TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 843
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....nie Besant Road, Worli, Mumbai - 400 018 3 Maker Tower E- Wing, Cuffe Parade, Mumbai - 400 005. 4 Meher Chambers, R. Kamani Road, Ballard Estate, Mumbai - 400 001 3. During the period April- September, 2006 a demand of Rs. 1,92,10,120/- was raised for wrong availment CENVAT Credit while providing exempted services as well as taxable services and such availment is in violation of CENVAT Credit Rules, 2004. They did not maintain separate records for the exempted and taxable services in terms of Rule 6(1) of the CENVAT Credit Rules. Therefore, as per Rule 6(3)(e) they could utilise credit only to the extent not exceeding 20% of the amount of Service Tax payable on output services. They also availed CENVAT Credit of Rs. 31,25,737/- wrongly on input services on invoices raised on the registered unit at Worli whereas the credit was taken in another registered unit at Mafatlal House, Mumbai. Similarly for the October, 2006 to March, 2007 they provided exempted and taxable services without maintaining separate records. Thus they were required to pay Rs. 2,78,23,485/- in terms of Rule 6(3)(c). They also availed CENVAT credit at premises other than the promises mentioned in the ....
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.... The applicants also explained that the exempted services shown in the ST-3 returns pertain to the period prior to 01.03.2006 when Notification N. 59/98 was in force. Since the payment thereof was received in the impugned period (April, 2006 onwards), the same has been shown in the exempted service column as no other appropriate column was available in the ST-3 Returns. According to the learned Counsel, the Commissioner has not disputed this factual submission of the appellant and the only allegation in the show-cause notice for the period April, 2006 to September, 2006 is that the appellant had provided exempted as well as taxable services. And the learned Commissioner confirmed the demand on the ground that the representational services provided by Chartered Accountants under Notification NO. 25/2006 and services provided to SEZS units under Notification No. 4/2004 are unconditionally exempted and the appellants cannot pay Service Tax thereon, and therefore restriction on availment of CENVAT credit upto 20% applies in this case. But the show-cause notices do not allege that the reason for denying CENVAT credit is that the notification grant unconditional exemption. The learned Co....
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.... (v) The reliance by the learned Special Counsel on the decision of the Hon'ble Supreme Court in the case of Orient Weaving Mills (P) Ltd. Vs. UOI 1978 (2) ELT J 311(SC) is not applicable because there is no provision in Service Tax Law unlike as in Section 38 of Central Excise Act which provides that notification shall have effect "as if enacted in this Act". He relied on Hotel Balaji and Others Etc. Vs. State of Andhra Pradesh - 1993 Supp. 4 SCC 536. (vi) As regards the invoices in the name of Worli Office, the credit has been taken only at Mafatlal House Office and they have produced a CA certificate to this effect. And the same being a curable defect, therefore CENVAT credit cannot be denied on procedural grounds because the service was received by Mafatlal Office. He relied on various decisions such as:- (a) CCE, Vapi Vs. DNH Spinners - 2009 (16) STR 418 (b) Parekh Plast (India) Ltd. Vs. CCE, Vapi - 2012 (25) STR 46-(Tri.-Ahmd.) (c) Modern Petrofils Vs. CCE, Vadodara - 2010 (20) STR 627 (Tri.-Ahmd.) In any case, the Mafatlal Office had paid Service Tax in cash amounting to Rs. 43,57,051/- which is much more than the amount in dispute on this issue. (vii) The extended....
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....of one year. 7. We have gone through the rival contentions. There are essentially two issues to be resolved. The first issue is whether the credit of input Service Tax is available on basis of invoices which were addressed to the Worli office but the credit thereof was availed in the Mafatlal House office. We find that in similar cases, credit has been allowed. In the case of Commissioner Vs. DNH Spinners - 2009 (16) STR 418 (Tri.-Ahmd.) the Tribunal held that credit cannot be denied on technical grounds that the documents were not in the name of assessee's factor at Silvassa but the same were issued in the name of the Head office of the assessee situated at Mumbai. In the case of Modern Petrofils Vs. CCE - 2010 (20) STR 627 (Tri.Ahmd) it was held that credit may not be denied because the invoices were in the name of the Head office instead of factory, as long as there is no allegation that the inputs services are not relatable to the factory and were consumed in the factory. Following these decisions, we hold that credit cannot be denied for the procedural infraction that the addressee in the invoices was another office of the appellant. 7.1 It is not the case of Revenue tha....
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....tutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice, from the whole of service tax leviable thereon under section 66 of the said Finance Act." It is seen that Notification No. 25/2006 provides exemption to a client only in respect of services relating to representing the client before any statutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice. The appellant's contention is that the invoices raised by the appellant to their clients reflect composite services. By way of illustration, learned Counsel showed some invoices, for example invoice No. TAX/000911/2006-2007 issued to Abacus International PTE Ltd. Some details of this Invoice and other invoices are extracted below Invoice No. TAX/000911/2006-2007 issued to Abacus International PTE. LTd. Certificate under Section 197 1. Regular follow-up with the income-tax authorities for issuance of the certificate for lower withholding tax under Section 197 of the Indian Income Tax Act, 1961. 2. Appearing before the Assessing Officer for discussion on issues raised by him in connection wit....
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....6 to 31 st March, 2007. 8.2 Essentially the argument of the appellant is that the invoices do not represent only the fees relating to representing the client before a statutory authority but also include fees for other services provided under the invoices as shown for some invoices above by way of illustration. This contention is acceptable because it does not appear that activities such as 'review of an Order' or professional services rendered in respect of Sales Tax Act may not be covered under exemption Notification as they do not relate to representing the client before any statutory authority in the course of proceedings initiated under any law by way of issue of notice . We find that the fees relating to activities covered by exemption under Notification No. 25/2006 are not segregated from the fees relating to jobs which are not exempted. It is obvious that the department cannot demand Service Tax on the entire amount. Unfortunately, the Revenue has not even attempted to do any segregation, if at all it was possible, in the consolidated invoices between taxable activities and exempted activities. Revenue has not referred to any invoice for an examination and analysis wit....
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....rate and maintain the Special Economic Zone; (ii) the unit of the Special Economic Zone has been approved by the Development Commissioner or Board of Approvals, as the case may be, to establish the unit in the Special Economic Zone; (iii) The developer or unit of a Special Economic Zone shall maintain proper account of receipt and utilisation of the said taxable services." We note that one of the conditions of the Notification is that the developers or units of SEZ shall maintain proper account of receipt and utilisation of the said taxable service. We appreciate the appellant's contention that it is not in their control to ensure that the service receiver maintains proper records. Hence, they paid Service Tax on such services correctly. Reliance is placed on the case of Sobha Developers (supra) in which it was held that Notification No. 4/2004 read with Rule 25 of SEZ Act, 2005 is a conditional exemption and therefore the restriction under Rule 6 of the CENVAT Credit Rules would not apply. 8.5 We also find that this aspect of conditionality in Notification No. 4/2004 has not been discussed at all by the Commissioner in the impu....