TaxTMI 
TaxTMI 
2022 (1) TMI 971
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....ided as under : 5.1 The demand for inadmissible Cenvat 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 F....
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....tain crucial documents which evidences that there has been no utilization of CENVAT credit pertaining to Passenger Service Fees, User Development 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 tha....
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....s recorded in the impugned order submits the letter dated 21st December 2021, in response to the direction issued by the bench on 02.12.2021. The text of letter is reproduced below: "Sub:- (Legal/Court Matter) Compliance of Directions 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....
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....31,95,39,496/-. They agreed to submit the correct quantification by 24.2.2015. They further submitted that they have reversed entire Cenvat credit availed by them during in December 2014/January 2015. Subsequently, they submitted a letter dated 2.3.2015, received on 5.3.2015 for the additional submissions pursuant to personal 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....
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....er protest', it appears that the noticee is claiming that they are eligible. for the entire credit and reserving their right to claim it at a later stage. Is the assessee trying to submit that even the provisions of Rule 6(3) is not applicable to them? Thus, the hollowness of the submissions made by the noticee defending their wrong availment of " 5.3 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 'E....
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....puted by the audit authorities. We have checked this Service Tax Return and the corresponding workings. From the workings it is apparent that a clear CENVAT Credit balance of INR 29,15,74,401 dehors all credits relating to PSF/UDF/DF and all output liabilities has been arrived at by undertaking the following steps: i. Deduction of all credits relating to PSF/UDF/DF amounting to INR 31,72,51,646; ii. 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 ....
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....14 has been wrongly availed and the amount of Rs. 55,45,55,865/-reversed in Feb 2015 is to be appropriated against the amount of cenvat credit that has been wrongly availed. INTEREST 20. As per the provision of Rule 14 of Cenvat Credit Rules, 2004 as it existed all the relevant time, where the cenvat credit has been taken and utilised wrongly, the same along with interest is liable to be recovered and the provisions of Sections 11A and 11AA of the Excise 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....
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....annot be held as suppression of facts with an intention to evade tax. The major thrust of the above defence is their purported letter dated 15.12.2008 allegedly submitted during audit. I have gone through the copy of the said letter dated 15.12.2008 which was submitted by the notice along with their written reply. The said letter purportedly declare that they had been availing Cenvat credit on PSF. It is seen that the said letter was addressed to the Assistant Commissioner of Service Tax, for submitting 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 ....
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....any declaration mentioning the that they are provider of service to AAI for collecting PSF on their behalf. Even while defending the present SCN, the noticee is still saying they are the recipient of the services. However, they could not elaborate what services they have received from AAI, for which the PSF and UDF is collected from passengers ..... .......Beside, there seems to be an element of misdeclaration with an intention to avail the inadmissible cenvat credit. This fact get support from their submissions in response to the present SCN as well 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 ....