2019 (2) TMI 1028

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....ity carried out, without charging service tax was paid by the appellant. During the audit of the appellants' A/cs., the Departmental Officers noticed that no service tax was being paid by M/s. Suraj Associates Pvt. Ltd., JSR for the activity carried out. The service provider subsequently discharged the service tax liability for the period 16.6.2005 to 31.3.2007. The service tax was paid under the category of "Manpower Recruitment or Supply Agency Service" as defined in Section 65(68) of Finance Act, 1994. The liability for service tax arose upon the amendment of the said definition w.e.f. 16.6.2005 which expanded the scope of the entry to include the supply of manpower also. The service tax amount so paid by M/s. Suraj Associates Pvt. Ltd., JSR., was availed as CENVAT credit by the appellant, on the basis of the supplementary bill issued by the service provider on 30.4.2007. It is further on record that the service provider has paid the service tax amounts by means of challan dated 01.5.2007. 2. The Department was of the view that the appellant was not entitled to avail the CENVAT credit of such service tax paid by the service provider subsequently for the following main reasons....

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....05.2007, it was mentioned in the challan under the column of registration number "Apply For". He submitted that this cannot be taken to mean that the service provider was not registered with the Department. d) Finally he submitted that the appellant was entitled to such credit since the service tax amounts have been duly paid by the service provider and further that the supplementary invoice has been issued. e) He also relied on the following case laws to support his argument: (i) 2017(52) S.T.R. 164 (Tri.-Del) Diamond Cements -Vs-Commissioner of Central Excise, Bhopal (ii) 2018(8) G.S.T.L. 153 (Mad.) Commissioner of Central Excise, Salem -Vs- JSW Steels Ltd., 5. The Learned D.R. justified the impugned order. He submitted that the supplementary invoice issued by the service provider is not one of the prescribed documents under Rule 9(f) of the Cenvat Credit Rules, 2004. Hence any credit availed on the strength of such document is required to be disallowed. He further drew our attention to the detailed findings of the Adjudicating Authority. The Adjudicating Authority has held that the credit is not allowed. 6. Heard both sides and carefully perused the appeal reco....

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.... penalty and payment of interest. Both the orders are challenged before the Tribunal mainly on the following grounds : (i) The service tax stands paid by the service provider and subsequently invoices have been issued which are clearly relatable to the original invoices on which the consideration for the service was recovered. Since the service tax amounts have been duly paid, the Cenvat credit thereof should be allowed to the appellant. (ii) The supplementary invoice raised by the service provider is on par with the original invoice as has been held by various judicial pronouncements. Further, since there is no record of any proceedings initiated by the Revenue against service provider in which there are allegations of suppression against them, there is no ground to deny the Cenvat credit availed on the basis of the supplementary invoices. They have also cited the following case laws in their support : (a) Secure Meters Ltd. v. CCE - 2010 (18) S.T.R. 490 (Tri.-Del.). (b) Delphi Automotive Systems Pvt. Ltd. v. CCE - 2013-TIOL-1793-CESTAT-DEL = 2016 (46) S.T.R. 369 (Tri.-Del.). 4. I have heard ld. Advocate Ms. Sukriti Das for the appellant and ld. DR Shri M.R. Sharma ....

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....edit on the basis of the above-mentioned supplementary invoices, just because at the time of receipt of the input services, the input service providers were not registered and had not mentioned Service Tax registration no. in the invoices. When the receipt of input services is not disputed and the fact that the input service had been used for providing the taxable output services is not disputed, the credit of Service Tax on the input services even if paid subsequently under supplementary invoices, cannot be denied. The impugned order, therefore, is not sustainable and the same is set aside. The appeal is allowed with consequential relief". 7. In the case law of Delphi Automotive Systems (P) Ltd. (supra) it has been clearly held that supplementary invoices are to be treated as valid documents for availing Cenvat credit. I find no reason to take a different view in the present appeals. Consequently, appeals are allowed and the impugned orders are set aside." 9. Our views are further fortified by the decision of the Madras High Court in the case of JSW Steel (Supra) wherein the Hon'ble High Court also allowed the Cenvat credit under similar circumstances with the following obse....