TaxTMI 
TaxTMI 
2022 (1) TMI 971
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....envat Credit availed by the noticee as above is confirmed to the extent of Rs. 31,95,39,496/- under Rule 14 of the CCR 2004 read with proviso to Sec 7311) of the Finance Act. The same is liable to be recovered from M/s. Emirates forthwith, 5.2 l hereby order the payment of interest under Rule 14 of CCR 2004 read with Section 75 of the Finance Act, 1994 on the above service tax amount of Rs. 31,95,39,496/- confirmed against M/s Emirates as above from the date of wrong availment to the date of payment. 5.3 Thereby appropriate the amount of Rs. 22,87,851/- deposited by the noticee against their confirmed liability as mentioned in para 5.1 above. I also appropriate amount of Rs. 7,19,071/- deposited by them against their interest liability arising in view of Para 5.2 above. 5.4 Thereby impose penalty under Rule 15(3) of CCR 2004 read with Sec 78 of the Finance Act amounting to Rs. 31,95,39,496/-only, on M/s. Emirates. 5.5 This order is issued without prejudice to any other action that may be initiated against the noticee M/s. Emirates under the provisions of the Finance Act, 1994 or rules framed there under or any other law for the time being in force in....
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....ent Fees and Development Fees levied by the Airport Authorities for the period 1 st April, 2008 to 31st March, 2021. 4. The Applicant submits that no demand is sustainable as the Applicant has not utilized the CENVAT credit and have reversed CENVAT credit availed in respect to the abovestated services and that the same is reflected in the ST-3 Return filed on 24th April, 2015 for the period October, 2014 - March, 2015. Hereto annexed and marked as "Annexure A" is a copy of the ST-3 Return filed on 24th April, 2015 for the period October, 2014 - March, 2015. 5. The Applicant further states that, the Impugned Order records that the Applicant had agreed to reverse the CENVAT credit but were unable to produce evidence to support the said contentions. In respect to the same, the Applicant submits that the Applicant were unable to furnish the document before the Respondent as the same was under internal processing on account of fimalization of service tax returns, In view of the categorically places on record that the Applicant had reversed the CENVAT Credit amounting to Rs. 31,71,51,646/- in relation to the abovementioned services. Hereto annexed and marked as "Ann....
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....ons of Hon'ble CESTAT in Appeal No.ST/86600/2015 - M/s Emirates Please refer to your mail dated 16.12.2021 on the above subject. The verification report submitted by the jurisdictional officers in respect of M/s Emirates in Appeal No.ST/86600/2015 is as follows: 1. On perusal of the ST-3 retum filed by the taxpayers on 24.04.2015 for the period Oct to March for the financial period 2014-15 it is noticed that the assessee reversed the Cenvat Credit during the month of February 2015 as detailed below : (Amount in Rs.) Sr. No. Cenvat Credit Reversal Remarks 13.1.3.8 (Tax) 83,23,05,289/- under the category of under protest and without any protest 2. From the above table it cannot be said that an amount of Rs. 31,71,51,646/- is reversed towards PSF, UD & UDF. Therefore, a mail dated 03.12.2021 was sent to assessee to submit the relevant invoices amounting to Rs. 31,71,51,646/-. The assessee has submitted 247 invoices on 13.12.2021 regarding the said amount. 3. The said invoices were examined and it was found that the assessee has submitted invoices to the extent of Rs. 10,59,06,737/-. The annexure I, II, III, IV & V detailing the category ....
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....onal Hearing. They interalia stated that: i. Pursuant to the directions from Audit officers of Service tax , department they have agreed to reverse the Cenvat credit on PSF and UDF availed during the period 2008-09 to 2011-12; that the they shall be reversing the amount of Rs. 31,79,45,704/-( i.e. total cenvat availed Rs. 31,95,39,496/- less Rs. 22,87,851/- paid in cash ); that all the reversal and payments are made under protest. ii. They have obtained a certificate from an independent CA quantifying the cenvat availment on PSF and UDF during April 2008 to March 2012, at Rs. 31,95,39,496/ as against the demand worked out in SCN at Rs. 25,86,73,098/-; that during the period April 2012 to January 2013, they have not availed any Cenvat credit whereas the SCN alleges that the cenvat on UDF during the period was Rs. 11,89,33,924/-; thai in view of the CA certificate the SCN demand should be reduced to Rs. 31,95,39,496/-, iii. They have not utilized the entire Cenvat availed by them in as much as they have utilized the eligible Cenvat as per Rule 6(3) of CCR 2004; that they have not carried forward the balance of cenvat in ST3 which implies that they have reverse....
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....; The appellant has through the miscellaneous application, placed on record the ST-3 return for the period October 2014 to March 2015, filed on 24th April 2015, and have claimed that they have already reversed the entire amount of Rs. 31,79,45,704/-( i.e. total cenvat availed Rs. 31,95,39,496/- less Rs. 22,87,851/- paid in cash ), confirmed by the Commissioner in the impugned order. However due to some reason the evidence of reversal could not be made available to Commissioner before passing of impugned order. They have supported their claim of reversal by the Chartered Accouintant Certificate dated 30th November 2021, which is reproduced below: Date:- 30th November, 2021 TO WHOMSOEVER IT MAY CONCERN We M/S. SSP K & Associates have verified records of Indian Branch of M/s Emirates (hereinafter referred to as 'Emirates India' and having its office at 3, Mittal Chambers, 228, Ground Floor, Nariman Point, Mumbai 400 021) relating to CENVAT Credit availed by it in respect of Passenger Service Fees (hereinafter referred to as 'PSF'), User Development Fees (hereinafter referred to as 'UDF') and Development Fees (hereinafter referred to as 'DF') levied b....
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....sp; Application of the revised ratios year-wise under Rule 6(3); iii. Appropriation of all the output liabilities for the disputed period from the resultant amount; From the above, it is verified that there is no utilization of credits pertaining to PSF/UDF/DF to discharge the output liabilities as reported in the Service Tax returns except in the Month of June 2008 amounting to INR 66,94,368, which has been duly paid along with interest. For SSP K & Associates Chartered Accountants" 5.4 To verify the claim of reversal made by the appellant in their miscellaneous application, we had directed revenue authorities. The verification report submitted by the revenue through authorized representative is without any merits. The fact that was required to be verified from the ST-3 r5eturns was vis a vis the reversal entries reflecting in the ST-3 return. To verify the reversal made the authorities have sought to verify the invoices against which the credit was taken. The futile exercise of verification of invoice undertaken by the revenue, cannot certify the reversal entries made. The reversal entry cannot be corroborated back to the invoices. It is not to be verified wheth....
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....xcise Act or sections 73 and Section 75 of the Finance Act, shall apply mutatis mutandis. This provision was the result of the amendment to Rule 14 brought about by notification 18/2012-CE(NT) dated 17.03.2012. Prior to the said amendment in the happening of any of three situations, namely- 1) credit has been wrongly taken, 2) credit has been wrongly utilised and 3) credit has been erroneously refunded, interest was liable to be paid. However; with the said amendment it is clear that not only has the cenvat credit to be wrongly availed, the same has to be utilised in order to saddle the assessee with interest while recovering the wrongly availed cenvat credit. It has been made more explicit vide notification no. 6/2015-CE (NT) dated 01.03.2015. Thus, the intention of the legislature as regards interest is very clear. If the assessee reverses the cenvat credit wrongly availed which has not been utilised, then interest cannot be recovered from such assessee in respect of such reversed amount. 20.1 I find that the show cause notice has not made any specific allegation on the matter as to whether the alleged wrongly availed cenvat credit has been utilized or not before the amou....
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....itting following documents for EA 2000 Audit: i. Information as per Annexure A along with supporting. ii. Brief Note of activities-Synopsis iii. Registration Copy (ST-1 and ST-2) iv. Details of Service wise revenue. Service Tax paid. v. Copies of Service tax returns from Jan 2003 711 Sept 2008. The said letter per-se do not mention about any details relating to cenvat availment and input services on which cenvat is availed by them. The reference of PSF comes in Annexure A which was purportedly submitted by them where in they had mentioned that List of input Services in the same category in respect of which tax credit is availed- Passenger Service Fee'. Ironically, they have mentioned PSF as a input service whereas as they were collecting the charges from passengers, as if they were providing it as out-put service to the passengers. This fact was not disclosed in the said letter. As such it creates a wrong or misleading impression that PSF was for services received by the noticee , where as this was contrary to the fact. The above cannot be termed as a proper disclosure. What was important and should have been declared by them was the....
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.... where they are trying to claim that they are infact provider to services for which PSF and UDF is collected. This claim is contrary to the facts as examined in the forgoing paras. It is peculiar to note that the entire dispute arises because of the mechanism adopted for remitting the PSF and UDF collected by the airlines to AAL. It was the DGCA direction that the AAI /Airport operator would raise an Invoice for collecting the same and the airline would remit the amounts collected by them as PSF and UDF from the passengers to AAI, Kad there been no Invoice raised by AAL, there would not have been any occasion to avail such cenvat. The raising of invoice always gives an impression that the airline is a recipient of services. But fact is the invoice were just part of the mechanism to recover the PSF and UDF which were collected by airlines on behalf of AAI. These were not for any services provided or to be provided to the noticee to qualify as a 'input service'. The noticee is only trying to take undue advantage of the situation to get the inadmissible and illegal benefit. This arrangement itself hides the true nature of the transaction and the notice has attempted to drive....