TaxTMI 
TaxTMI 
2022 (10) TMI 195
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....e formed an opinion that the Cenvat Credit appears to have been availed in contravention to Rule 9 (1) of Cenvat Credit Rules, 2004 and as such is not admissible. With respect to one of the invoices therein about availing tour operator services (invoice No. 5 of the table in Show Cause Notice), the department formed an opinion that the services relates to personal consumption by the employees as were meant for their leisure/ vacations. The Cenvat Credit was found to be the inadmissible one. 2. Based on this observations that a Show Cause Notice No.4620 dated 3.9.2019 was issued proposing the recovery of inadmissible Cenvat Credit against the 10 invoices as given in the Show Cause Notice for an amount of Rs.42,92,019/- being the inadmissible Cenvat Credit on the ground that the service providers have not provided any input service to the appellant. The amount was proposed to be recovered alongwith the interest and the proportionate penalties. The said proposal was initially confirmed vide Order-in-Original No.28/2020 - 21 dated 30.12.2020. The appeal thereof has been rejected vide Order-in-Appeal bearing No.56/2021 dated 17.02.2020. Being aggrieved of the said order, the appellant ....
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....C.E., Visakhapatnam reported as 2009 (16) S.T.R. 154 (Tri. - Bang. 5) Cambay Organics Pvt. Ltd. Vs. Commissioner of Central Excise, Vadodara reported in 2007 (217) E.L.T. 586 (Tri. - Ahmd.) 4.2 With respect to merits also Ld. Authorised Representative for the appellant has submitted that appellant has a strong case seen from the point of view of merits. It is submitted that appellants manufacturing unit is located at Siltara, Raipur. However, the appellant has got the Central Registration in favour of its headquarters at 73A Central Avenue, Nagpur. This registration covers the appellants captive mines also at Raigarh. The only object whereof is to supply coal to the appellants manufacturing unit, coal being main input in manufacture of final product of the appellant. The another unit being covered under the Centralized registration is appellant's own subsidiary as Sarda Energy and Minerals Hong Kong Limited. It is submitted that all accounts of the above all places were being maintained by the appellants only. The payment in respect of the disputed 10 invoices was also made by the appellants unit at Siltara only. The Cenvat Credit of said service tax paid is mentioned to have be....
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....to other units and not to the appellant's unit. c) The appellant resorted to suppression of facts, wilful misstatement in contravention of rules with the intent to evade payment of service tax. 7.1 With respect to the point No. (a) and (b) above, following are the observed admissions:- 1) That appellant is a manufacturing unit but is being spread at several places including the place of their captive mines. 2) All the several places of appellant have been registered under one common centralised registration except that mines have separate registration but against the same PAN No. 3) The services availed by either of the units including mines of the appellants qualify to be the eligible input services. 4) The invoices are in the name of the appellant at their registered address (the address registered is that of the head-quarter of the appellant whereas Sarda Energy and Minerals Ltd. exist at Siltara, Raipur). 7.2 These admissions when read with rule 3 of Cenvat Credit Rules makes it clear that the appellant was entitled to avail the Cenvat Credit. Since the violation of rule 9 (1) (f) of Cenvat Credit Rules, 2004 has been alleged by the Department for availing the impug....
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....of coal has no where been denied. Further it is observed that appellants only have made the payment of service tax. The mention of the address of headquarter in the said invoices does not make any difference. Accordingly, it is held that findings of Commissioner (Appeals) in para No.9 are absolutely wrong. The invoices are mentioning all the details as are required as per rule 9 (1)(f) of Cenvat Credit Rules. The case of appellant squarely gets covered under the purview of Rule 2 (l) of Cenvat Credit Rules and also under proviso to Rule 9(2) of CCR, 2004. Hence the findings that appellants case is not covered under 2 (l) of CCR are absolutely wrong. The findings of Commissioner (Appeals) are accordingly, held as being liable to be set aside. 9. With respect to invoice No.5 the tour operator services are observed to have been availed by the appellant. Department has alleged those services to have been personally consumed by the employees of the appellant, hence, were ineligible for Cenvat credit. But, as impressed upon by ld. Authorized Representatives of the appellant, about the object of the visit of the employees, it is perused from the impressed upon document that those service....
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....ow Cause Notice but the authority has not given any speaking finding identifying and specifying the acts of omission and commission with supporting evidence warranting invocation of extended period of limitation. 13. On the contrary the Show Cause Notice is observed to be based on the appellant's own document i.e. invoices as were maintained by them in regular course of business. The returns were admittedly been filed in time mentioning required details about availment of credit. There is nothing found on record which may be the proof for alleged suppression or misconduct. In a decision of Raj Bahadur Narayan (supra), Hon'ble Apex Court has held as follows:- 9. We have set out the relevant parts of the show cause notice. It speaks of an erroneously granted rebate. There is no mention in it of any collusion, wilful mis-statement or suppression of fact by the appellants for the purposes of availing of the larger period of five years for the issuance of a notice under Rule 10. The party to whom a show cause notice under Rule 10 is issued must be made aware that the allegation against him is of collusion or wilful mis-statement or suppression of fact. This is a requirement of natura....