TaxTMI 
TaxTMI 
2021 (9) TMI 25
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....12-2009 was issued to them by invoking the extended period of limitation on the ground that during the impugned period, they had availed cenvat credit on bills/photocopy of bills which were issued to the address of the head office situated at 5, Bentinck Street, Kolkata-700001 without issuing any invoice for distribution of input service or following the provisions thereto. It was further alleged that the said head office was not even registered as an input service distributor as required under Rule 9 of the Cenvat Credit Rules, 2004 for distribution of credit on the documents in the name of the head office. Therefore a proposal was made for recovery of Cenvat Credit taken by the Appellant willfully with the intent to evade payment of duty demandable and recoverable from them along with interest invoking the extended period of limitation in terms of the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 along with imposition of penalty under Rule 15 Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. 3. The Ld. Commissioner vide the impugned Order has allowed the credit of Rs. 57,76,485/- on th....
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....ted 07-06-2005, which inter alia, laid down the procedure for Registration for input service distributor but the said rule is only of procedural nature for which they cannot be denied substantive benefit. There is nothing in the said rules which would ultimately disentitle an input service distributor from availing cenvat credit. That they had maintained full records and no discrepancy to this effect has been pointed out in the show cause notice. It is his submission that certain original invoices relating to bank advices and auxiliary insurance services on which they had availed input services to the extent of Rs. 18,29,339/- and Rs. 11,42,161/- respectively were missing on which they had submitted a statement as Annexure G to the show cause notice. However, they had submitted two certificates of Chartered Accountants dated 24-08-2010 and 25-08-2010 respectively which are placed at pages 84 to 86 and 87-88 of the appeal memo. The Chartered Accountant in both the certificates had certified that the said banking and financial services as well as auxiliary insurance services were received and used by the company in the activities relating to its business. It was further certified tha....
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.... 2,000/- if the credit in respect of input services has been taken wrongly or in contravention of any of the provisions of these rules whereas Rule 15(4) of Cenvat Credit Rules, 2004 provides that where the Cenvat credit in respect of input service has been taken or utilized wrongly by reason of fraud, collusion, willful mis-statement, suppression of facts, or contravention of any of the provisions of the Finance Act or of the rules made thereunder with intention to evade payment of service tax, then, the provider of output service shall also be liable to pay penalty in terms of the provisions of section 78 of the Finance Act. In this case the Commissioner has imposed penalty of Rs. 2,000/- under Rule 15(3) of Cenvat Credit Rules, 2004. Had it been a case of willful mis-statement or suppression of facts then the Commissioner would have imposed equal amount of penalty as provided under Section 11AC of the Central Excise Act which was invoked in the show cause notice or under Rule 15(4) of Cenvat Credit Rules, 2004, which provides imposition of hundred percent of the credit availed in terms of provision of Section 78 of the Finance Act. However the Commissioner chose to impose penalt....
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.... to the show cause notice has categorically stated that the present Appellant had taken over this unit only w.e.f. 23-07-2007. Upto that point there was only one head office and one manufacturing unit. So there is no justification to deny the Cenvat credit up to the said date. Even subsequent to 23-07-2007 there is neither any allegation in the show cause notice nor any finding in the Order-in-Original that the Cenvat credit on input services was utilized in more than one unit. It is our considered view that if the revenue was of the opinion that there was any misutilisation of the credit from the head office to the manufacturing unit, the onus was upon them to have proved the said fact with concrete evidence. No such exercise was ever conducted by the department. Now the question which remained for consideration is that whether the Cenvat credit on input services can be denied to the Appellant merely on the ground that the head office was not registered as input service distributor as required under Rule 9 of the Cenvat Credit Rules, 2004 for distribution of credit on the documents in the name of the head office. This question has been answered by the various judgments of High Cou....