TaxTMI 
TaxTMI 
2018 (12) TMI 1032
X X X X Extracts X X X X
X X X X Extracts X X X X
....ring of final product of the appellant. The Department also alleged that the credit has been availed on improper documents. 2. Resultantly, vide show cause notice No.15335 dated 18.09.2015, Department of Revenue proposed to disallow the cenvat credit of service tax amounting to Rs. 48,62,000/- availed in respect of above mentioned services during the period w.e.f. September, 2010 to July, 2015. The interest at the prescribed rate in accordance of Section 11AA of Central Excise Act, 1944 and penalty under Rule 15(2) of CCR, 2004 read with Section 11AC (1) (c) of CEA, 1944 was proposed. The said show cause notice was initially adjudicated by Additional Commissioner vide its order bearing No.159 dated 30th September, 2016, thereby partially confirming the demand. The input service credit of an amount of Rs. 39,55,335/- was held to have been correctly taken by the appellant. The said demand was dropped. However, the cenvat credit amounting to Rs. 9,06,665/- was alleged to have been wrongly availed. The proportionate interest at the appropriate rate and the penalty to the extent of 50% of the duty so determined was also imposed upon the appellant. Being aggrieved, appellant preferred a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvices. The Counsel has relied upon the case law of Vinithi Organics Ltd. Vs. CCE, Kolapur reported as 2018 (2) TMI 776. With respect to the denial of Cenvat Credit for receiving services as that of consultancy service and general insurance services for want of the Service Tax Registration. The findings are alleged to be wrong. Emphasis on case law of Coso India Pvt. Ltd. vs. CCE, Cochin - 2017 (10) TMI 963 (Tri.-Bangalore) has been relied upon. 6. Similarly with respect to membership charges, the findings are alleged as wrong because the club is sponge iron manufacturers association only. The membership is not for the personal entertainment of the employees, but for the employees to remain acquainted with the developments in the industry. Hence, it was very much in relation to the business activity of the appellant. The case of CCE, Bangalore vs. ITC reported in 2017 (6) TMI 151 (Tri.-Bang.) is relied upon for the purpose. Finally, it is submitted that show cause notice dated 18.09.2015 is barred by limitation. Since there is no allegation even in the show cause notice qua evasion of the duty on part of the appellant, the allegation of wrong availment of cenvat credit is apparent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s has also been acknowledged by the adjudicating authorities. Those details contains the relevant description as is required to be furnished vide Rule 9 of CCR. Proviso to Rule 9 (2) is clear enough to say that if the document does not contain all the particulars but contains the details of duty or Service Tax payable, description of goods or taxable service, assessable value, Central Excise or Service Tax Registration No. of the person issuing the invoice, name and address of factory or warehouse or the premises of first or second stage dealers or provider of output services the Dy. Commissioner/Assistant Commissioner of Central Excise after being satisfied that the goods or services covered by the said document have been received and accounted for in the books of accounts of the receiver, he may allow the cenvat credit. The bare perusal makes it clear that even if the documents as mentioned in Rule 9 (1) are not available, the competent authority as mentioned has a discretion to still allow the credit. In the present case, the documents placed have all the above mentioned details except for Service Tax Registration. There is no allegation in the show cause notice that the service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not be denied even if, duty paying documents are invalid, as per Rule 9 of CCR, 2004. Above all, credit taken on bonafide belief of duty payment documents evidencing payment of excise duty amount is admissible. The denial thereof by Commissioner (Appeals) is therefore not sustainable. 14. Now coming to the demand confirmed for the services as mentioned in Annexure 'D' of show cause notice, I observe that the credit has been denied on 2 scopes: (1) for impugned services to not to be the input services and (2) for want of evidence as that of contract/ agreement, drawing/design etc. For the purpose the definition of input service as mentioned in Rule 2 (l) of Cenvat Credit Rules, 2004 as well as the definition after amendment w.e.f. 01.04.2011 are relevant for the purpose. "input service" means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal; but excludes services,- (i) Credit availed on Construction charges. 7. It may be noticed from Annexure D of impugned notice the amount of service tax in each bill pertains to construction charges/ construction service work are ranging between Rs. 1492/- to Rs. 37500/- which proves that each provider of taxable service had worked in Noticee factory under the Petty contract work order. In the inclusive portion of input service definition the activity of setting up, modernization, renovation or repair of a factory has been specifically specified in Rule 2 (l) of Cenvat Credit Rules, 2004. Hence denial of Cenvat credit in respect of petty works as proposed in impugned notice being contrary to Rule 2 (l) ibid is unsustainable." The conjoint reading of Section 65(25) (b) of Finance Act, 1994 defining commercial or industrial construction, Section 66 E.. about the services constituting declared services with that of the definition of input s....