2015 (9) TMI 1333

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....Duty paid on inputs and capital goods and of service tax paid or input services in terms of provisions of CENVAT Credit Rules, 2004. During the above mentioned period of dispute, they took CENVAT Credit of Rs. 3,97,25,526/- on the basis of the invoices of a number of input service providers. The department has alleged that the invoices on the basis of which CENVAT Credit has been taken are supplementary invoices for payment of service tax which had been evaded, and therefore, the provisions of clause (bb) of Rule 9 (1) would become applicable, according to which the CENVAT Credit of service tax paid under supplementary invoices, bills or challans issued by a provider of output service under service tax Rules, 1944 would be admissible except....

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....roviders have been confirmed under proviso to section 73 (1) and penalty under section 78 of the Finance Act, 1994 has also imposed, no details of such show cause notices issued to the service providers and the adjudication orders passed by the concerned adjudicating authorities have been given; that the appellant in some cases contacted the concerned service providers and it was found that either no show cause had been issued or in the cases where the show cause notices invoking proviso to section 73 (1) had been issued, either the same had been set aside on the ground of limitation by the Tribunal or invoking Section 80 penalties had been set aside; that in view of this, the allegation that in all the cases, the invoices on the basis of w....

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....ntion of any of the provisions of the Finance Act or of the rules made thereunder with the intent to evade payment of service tax." From the perusal of this Rule, it is clear when manufacturer has used certain CENVATABLE input services from service providers, he can take CENVAT Credit even on the basis of supplementary invoices subject to condition that the service tax paid under the supplementary invoices issued by the service providers is not the tax which had been evaded, i.e., non-payment service tax, which was subsequently paid, was not on account of non-levy or non-payment or short levy or short payment of tax by the reason of fraud, collusion, wilful mis-statement or suppression of facts, etc. on the part of the service providers.....