TaxTMI 
TaxTMI 
2020 (11) TMI 621
X X X X Extracts X X X X
X X X X Extracts X X X X
.... resulted in the issuance of the show cause notice dated February 14, 2011. The show cause notice raised the following issues : (i) There was irregular availment of CENVAT credit on invoices which were not addressed to the registered premises. This was alleged to be in violation of rule 4A of the Service Tax Rules, 1994- the 1994 Rules read with rule 9 of the CENVAT Credit Rules, 2004- the 2004 Rules; (ii) The Appellant did not have a central registration or an ISD registration to distribute the CENVAT credit; (iii) There was a failure to discharge service tax liability on the photocopy and landscaping design services received from abroad in terms of rule 2(1)(d)(iv) of the 1994 Rules read with sections 66 and 66A of the Finance Act, 19945- the Finance Act. (iv) There was interest liability on late payment of service tax; and (v) There was non-payment of 8% service tax in terms of rule 6 of the 2004 Rules for the Financial Year 2008-09 for provisions of exempted services to Special Economic Zone. 3. It will appropriate to refer to the issue involved, the amount proposed in the show cause notice, the amount confirmed under the impugned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... b) Mportal India Wireless Solutions P Ltd. vs. CST, Bangalore-2012 (27) STR 134 (Kar.) c) Adbur Pvt Ltd. vs. CST, Delhi 2017 (5) GSTL 334 (Tri.-Del.) d) Manipal Advertising Services Pvt Ltd. vs. CCE, Manglore -2010 (19) STR 506 (Tri.-Bang) (ii) No service tax was payable in respect of services imported prior to April 18, 2006. Reliance has been placed on the judgment of the Bombay High Court in Indian National Shipowners Association vs. Union of India 2009 (13) STR 235 (Bom) against which the Appeal filed by the Department before the Supreme Court was dismissed. The decision of the Supreme Court is reported as Union of India vs. Indian National Shippers Association 2010(17) STR J57 (SC); (iii) Charge of suppression is unsustainable and, therefore, the extended period of limitation is not invokable; and (iv) No penalty is liable to be imposed upon the appellant. 5. Shri Kanhaiya Poddar learned Authorized Representative of the Department supported the impugned order and made the following submissions: (i) The Commissioner was justified in concluding that the Appellant had made an irregular availment of CENVAT credit to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt towards the value of such taxable service, whichever is earlier, shall issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him in respect such taxable service provided or agreed to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely :- (i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) description and value of taxable service provided or agreed to be provided; and (iv) the service tax payable thereon: Provided xxxx xxxx xxxxx" 10. The relevant portion of the rule 9 of the 2004 Rules is as follow: " 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:- (a) an invoice issued by- (i) a manufacturer for clearance of- (I) inputs or capital goods from his factory or depot or from the premises of the consignm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case, the Noticee has a registered office, B5/116, and carrying out activity of consulting engineer and architect from another premises, B6/17. It is not in dispute that the branch offices were not registered as ISD. Further it is observed that in order to distribute CENVAT credit as an ISD, one has to obtain service tax registration as an ISD. The invoices are to be raised only in the name of such registered Noticee. Credit on the same can be taken and distributed. On invoices raised in the name of someone else, CENVAT credit cannot be taken. As in the facts and circumstances, there is no dispute that invoices were raised in the name of the Noticee but on the branch office which was not registered as ISD. Hence, I hold that CENVAT credit cannot be taken by the head office or corporate office." 12. The Appellant has in the memo of appeal placed on record the certificates issued by the architects and interior designers. These certificates give the amount, the name, PAN no. and service tax no. These details are, therefore, in accordance with the 1944 Rules and the 2004 Rules and thus denial of CENVAT credit of Rs. 26,80,236/- on the invoice addressed to the registered premises bea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ooks of the account of the receiver, he may allow the CENVAT credit. Though I agree with the contention of the Noticee that the cenvat credit rules do not state that the premises of the recipient has to be registered preemies in order to avail the cenvat credit, yet in view of the rules quoted herein above i.e. either rule 4 or rule 9 of CCR, the name and address of the person receiving the service is of utmost importance. In the given case the name and address of the service recipient pertains to the branch which is not registered with the jurisdictional authorities. Now, when the cenvat credit rule gives a discretion to the deputy/ assistant commissioner to allow the credit on being satisfied that the goods of services covered by the documents have been received and accounted for in the books of account of the receiver, how can he/she can be supposed to have been convinced about the receipt of certain services which are received in the location which does not registered under in his/her jurisdiction. Hence the contention of the Noticee does not have any merit and is totally unacceptable." 15. The registration of premise with the Service Tax Department is not a condition for av....