TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 739
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....e was availed prior taking the registration and that it was availed on improper document i.e. on such invoices which were not in the name of registered address. As such, the violation of Rule 9 of Cenvat Credit Rules, 2004 and Rule 4(8) of Service Tax Rules, 1994 was alleged against the appellant vide the SCN No. 4241 dated 12.12.2019 proposing the denial of aforesaid amount as Cenvat credit. The proposal has been confirmed vide Order-in- Original No. 206/2020-21 dated 21.01.2021. The order has been upheld by the Commissioner (Appeals) vide the aforementioned Order-in-Appeal. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Chartered Accountant Ms Skhikha Jain, the learned authorised representative for the appellant and Shri Mahesh Bhardwaj, learned Departmental Representative for the department. 3. The authorised representative has submitted that the appellant had provided the taxable service. Though for the period in question, the appellant had not got its registration certificate but the services were duly provided with. All valid documents were generated including that of invoices. The invoices had all requisite particulars as are required under Rule 9 ....
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....mmissioner (Appeals) has observed that otherwise also the Cenvat credit in question has been availed on the services which cannot be allowed to be called as 'input services' prior the date of service tax registration. Impressing upon no infirmity in the said order, learned Departmental Representative has prayed that the impugned appeal to be dismissed. 5. Having heard the rival contentions of the parties and perusing the entire record, I observe and hold as follows: The availment of Cenvat credit for an amount of Rs.7,49,359/- as has been availed by the appellant is mainly on account of improper invoices i.e. the invoices issued from such an address which was not registered address of the appellant. The invoices have been denied to be a valid documents for being issued prior registration. Accordingly, the department has invoked Rule 9(1) of Cenvat Credit Rules, 2004. In view thereof, it is foremost necessary to look into the Rule which reads as follows: "9. 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:- ....
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....of Cenvat credit by the department is non-registration, at this stage, we look into Rule 4 of Service Tax Rules, 1994 which talks about the registration. "4. Registration (1) Every person liable for paying the service tax shall make an application to the [concerned Superintendent of Central Excise], in Form ST-1 for registration within a period of thirty days from the date on which the service tax under [section 66B] of the Finance Act, 1994 is levied: " The Rule makes it clear that any person who is liable for paying the Service tax has to get registration but the proviso thereof talks about the situation where the services can be provided even prior the registration. However, there is a time limit from the date of providing of such services during which the registration should have been applied for. 6. Reverting to the facts of the present case, there is no denial to the fact that the appellant started providing taxable service prior getting its registration. The service in question were admittedly taxable service which were provided against the invoices. However, few invoices were issued at the address at which the appellant was /is existing. There is no denial of the depa....
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....isite details given in the said proviso as noted above are available on record, the Cenvat Credit may be allowed. The above observed provision and the relevant requisite discussion above makes it abundantly clear that the service provider of taxable service though has to be registered with the Commissionerate, but when there is no denial of taxable service being provided by a present appellant against the relied upon documents as that of invoices and about discharge of tax liability by the appellant, substantial benefit as that of Cenvat credit shall not be denied to the service provider just for want of registration. 8. In the present case, it is rather apparent fact that service provider /appellant had during the period of providing service in question applied for registration and finally got itself registered with the service tax Commissionerate. This fact, in my opinion, is sufficient to hold that the invoices of pre-registration phase shall also be considered for availment of Cenvat credit by the appellant. I draw my support from the decision of Karnataka High Court decision in the case of M/s. mPortal India Wireless Solution Private Ltd vs Commissioner of Service Tax (supra)....