TaxTMI 
TaxTMI 
2017 (12) TMI 775
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.... the order dated 16.08.2017. 3. With the consent of learned counsel for the parties, the writ petition is being disposed of at the admission stage itself. 4. The brief facts of the case are that the petitioner is a company indulged in business activities being "Call Centre". There are two premises from where the petitioner is carrying out its call centre activities namely; (a) A94/7, Section-58, NOIDA, U.P. called as Sector 58 premises and (b) FC-19, Film City, Sector 16-A, NOIDA, U.P. (Sector 16A premises). According to the petitioner, no other place is belong to the petitioner from where the petitioner's company is carrying out its call centre activities in the state of U.P. 5. A show cause notice was issued for the period of 2011-12 to 2014-15, by the adjudicating authority to the petitioner in which it has been alleged that the petitioner had availed illegal CENVAT Credit owing the three irregularities mentioned in the show cause notice. For the ready reference three points are quoted hereinbelow: (a) Invoices raised during the period 2011-12 to 2014-15 (up to September, 2014), on the basis of which petitioner availed credit, did not have the address of th....
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....e 4A aforesaid are quoted hereinbelow: Rule 9 - Documents and accounts----- (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely:- (f) an invoice, a bill or challan issued by a provider of input service on or after the 10th day of September, 2004: or (2) 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, are contained in the said document: Provided that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service Tax registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is sat....
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....issioner, Service Tax, Delhi vide its order dated 30.11.2015 (relevant period from 2005-06 to 2010-11), has held that under the provisions there is no requirement for the registered premises of the recipients to be mentioned on the invoices in order for the recipients to avail the credit. 12. Learned counsel for the petitioner has placed the relevant extract of the order of the Commissioner dated 30.11.2015 which is quoted hereinbelow: "21.7 The noticee has argued that the clause (ii) requires the name and address of the person receiving taxable service but not the 'registered address'. In the present case, the person receiving the taxable service is the Noticee and this fact has not been disputed by the revenue. Thus, an invoice issued to the address of the office of the Noticee is an invoice issued to the Noticee. (emphasis supplied) 21.10 Thus, the requirement of law is that the input services should be receipt and accounted for providing the out put service. The litmus test for allowing Cenvat credit is the receipt and accounting of the input services for providing out service and proviso of Rule 9(2) of the Cenvat Credit Rules, 2004, which also hin....
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....the petitioner's company was not registered for the period of two months from January, 2012 to March, 2012 with the Service Tax Department, therefore, the petitioner's company is not entitled/eligible for input credit/input service availed during the aforesaid period. 17. According to the department, the credit, therefore, is inadmissiable to the tune of Rs. 98.90 lakhs. 18. Learned counsel for the petitioner has submitted, with regard to the issue No.(b) as mentioned hereinabove, that the invoices raised by the input service provider bore name either of M/s Essel Business Processes Ltd. or Integrated Subscriber Management Services Ltd., which is erstwhile name of the petitioner's company in the year 2011 pursuant to the order of the Hon'ble Bombay High Court in Company Scheme Petition No.604 and 605 of 2011 M/s Essel Business Processes Ltd.(Essel) dated 2nd December, 2011 was disallowed and was consequently merged with the petitioner's company namely M/s Cyquator Media Services Pvt. Ltd. 19. Counsel for the petitioner, therefore, has submitted that the petitioner's company is entitled to avail the CENVAT Credit being the resulting company after the....
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....#39;ble Supreme Court has held that all subordinate authorities are bound by the decisions of the Tribunal and such decisions have to be followed unreservedly by the subordinate authorities. 24. Learned counsel for the petitioner has submitted that the registration with the department is not a pre-requisite to avail the CENVAT as Rules do not mandate such registration for availing credit. Counsel for the petitioner, therefore, submits that the order passed by the Commissioner disallowing the CENVAT Credit amounting to Rs. 98,19661/- on the ground that the petitioner's company was not registered with the service tax department, therefore, the said amount is recoverable from the petitioner's company. 25. On the other hand, learned counsel for the Revenue has submitted that there is alternative remedy available to the petitioner to challenge the order of the Commissioner dated 16.08.2017 before the CESTAT. He has further submitted that in view of the alternative remedy the present writ petition is not maintainable. 26. Counsel for the department has further submitted and placed the provision of Section 69 of the Finance Act, 1994 which is quoted hereinbelow; ....
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....as involved and has been decided, it was obligatory on the part of the petitioner's company to fill up the lakuna and get the registration as required under law, which the petitioner's company admittedly has failed to do so. Counsel for the Revenue has further submitted that in the present proceeding, there are two other issues which are considered and decided by the Commissioner by its order dated 16.08.2017 which are yet to be adjudicated on merit by the Tribunal, therefore, there is no force in the submission of the counsel for the petitioner and on this pretext alone the writ petition be dismissed as in the present case admittedly the alternative remedy is available to the petitioner. 30. At the end, learned counsel for the Revenue has submitted that it is admitted fact that the second office of the petitioner's company was unregistered office coupled with the fact that the petitioner had not taken centralised registration nor made any endeavor to take registration or declare his branch office in the required survey, the benefit of procedural lapse in the earlier adjudication cannot be granted nor can be continued. 31. We have heard the learned counsel f....
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....ith the requirement of pre-deposit and the power of the Court under Article 226 is not taken away. This was also held by the Supreme Court in the case of P. Laxmi Devi [2008(4) SCC 720] in which the Supreme Court observed that recourse to the writ jurisdiction would not be ousted in an appropriate case. Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35F of the Act, is a separate matter altogether but it is important to note that the power under Article 226 has not been, as it cannot be, abridged. That leads the Court to the next aspect of the matter as to whether the requirement of pre-deposit would apply in a situation such as the present. 34. In the present case, as we find that the adjudicating authority namely Commissioner himself has held that in regard to the issue no.(a) of Rs. 18.35 crores the Commissioner has dropped the demand for recovering of CENVAT Credit on the similar set of facts where the Commissioner has held under Rule 4(A) of Service Tax Rules, 1994, the requirement is only to "the name and address of the person receiving the taxable service" and there is no requi....