2016 (2) TMI 608

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... SIM cards while rendering "telecommunication services" between September 2002 and March 2006 and an amount of Rs. 25,52,987/- on charges collected from foreign service providers for facilitating their customers in usage of roaming services during their stay in India, has disallowed CENVAT credit of Rs. 10,20,380/- availed against invoices pertaining to receipt of services by others and from outside the state of Haryana and credit of Rs. 3,496/- availed in excess of entitlement, interest thereon and also imposed penalties under section 78 of Finance Act, 1994. 2. In relation to tax on the value of SIM cards, the appellant had submitted before the original authority " and cited as ground of appeal " the decision of the Hon'ble Supreme Court....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ld be made on the sale value of the SIM Card supplied by the appellant to their customers irrespective of the fact whether they have filed returns and remitted tax or not. It also cannot be disputed that even if sales tax is Page 11 of 14 wrongly remitted and paid that would not absolve them from the responsibility of payment of service tax, if otherwise there is a liability to pay the same. If the article is not susceptible to tax under the Sales Tax Act, the amount of tax paid by the assessee could be refunded as the case may be or, the assessee has to follow the law as may be applicable. But we cannot accept a position in law that even if tax is wrongly remitted that would absolve the parties from paying the service tax if the same is ot....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... the aforesaid position that no element of sale is involved in the present transaction." 3. The appellant's contention in the grounds of appeal that discharge of VAT obligation to the state government will relieve them of tax liability under Finance Act, 1994 is, therefore, not tenable. 4. The original authority has disallowed CENVAT credit on the ground that credit availed relates to invoices that do not pertain to the appellant. He has relied upon Rule 4A of Service Tax Rules, 1994 which is required to be complied with as per Rule 9(2) of CENVAT Credit Rules, 2004, and lays down the contents that documents should contain. The adjudicating authority, on scrutiny of sample invoices, has concluded that a majority of them relate to M/s Bha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....of their earlier existence. Nevertheless, the onus vests on the claimant of credit to evidence the receipt of such services at such premises as are pertinent to the taxable services being rendered. Goods permit a certain ease of ascertainability by the tax officer; services are not easily amenable to such authentication and mere evidence of amalgamation of an entity with appellant will not suffice for the purpose of Rule 9(2) of CENVAT Credit Rules, 2004 without evincing place of receipt of input service as the place pertinent to supply of output service. The claim of the appellant fails rendering the order of the original authority unassailable on this count. 5. The benefit of non-taxability of charges on roaming facility availed by custo....