TaxTMI 
TaxTMI 
2023 (5) TMI 719
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....amshedpur, wherein the CENVAT Credit has been disallowed on supplementary invoices. Apart from the duty demand, equivalent Penalty has been imposed. The period in dispute involved is August 2008 and September 2008. 2. Briefly stated, the facts of the case are that the service provider, M/s Maa Engineering ('service provider'), was not registered with the Department during the period 2005-06 to 2007-08. It provided certain taxable services such as erection, commissioning, crushing of iron ores to the Appellant. Invoices were raised on the appellant without charging any service tax. Subsequently, an investigation was carried on at the premises of the service provider pursuant to which,it got itself registered and raised supplementary tax i....
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.... Rule does not prescribe any consequences in case where the issuance of a bill is delayed by the service provider. He placed reliance on the judgment of Hon'ble Madras High Court in Commissioner of Central Excise, Salem vs. JSW Steels Ltd., 2018 (8) G.S.T.L. 153 (Mad.). He further submitted that there is no dispute regarding 'particulars' in the supplementary invoices as prescribed in Rule 9(2) of CCR 2004. The said Rule nowhere specifies the condition that credit of service tax would be available only if the said invoice is issued by the service provider within 14 days from the date of completion of service/receipt of payment. The Ld. Chartered Accountant further submitted that credit is available in terms of the proviso to Rule 9(2) of....
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....R, during the impugned period, provided for denial of CENVAT credit on input services taken either wrongly or in contravention of any provisions of these rules in respect of any input service and the maximum penalty is Rs.2,000/- (Rupees Two thousand only). Further, sub-rule (3) no-where specifies the acts of fraud/suppression/wilful misstatement and therefore provisions of Section 11AC of the Central Excise, Act 1944 are not applicable. He relied on the judgment in the case of Davangere Sugar Company v Commissioner of C. Ex., Bangalore-II, 2011 (267) E.L.T. 384 (Tri- Bang). 5. Ld.Authorised Representative appearing for the Revenue reiterated the findings of the Learned Commissioner made in the impugned order and submitted that the appea....
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....allan is delayed. The period provided appears to be directory and not mandatory. Nothing to the contrary has been articulated by the Revenue." Respectfully following the above judgment, we hold that cenvat credit cannot be disallowed in the hands of the service recipient by invoking Rule 4A (1) of the ST Rules even if the service provider issues such invoice beyond the prescribed period of 14days from the date of completion of service/receipt of payment. The obligation to issue the invoice timely has been cast on the service provider and not the service recipient. Moreover, the period prescribed in the said Rule is directory and not mandatory as has been held by the Hon'ble High Court. Further, the issue as to whether the supplementar....
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.... 8. We also agree with the submission that during the period in dispute there was no restriction for availing cenvat credit and such credit would be admissible even assuming that the tax that has been paid by the service provider is due to deliberate evasion on his part for the period prior to 01.04.2011. The Tribunal in Para 9 of its decision in Delphi Automotive Systems (P) Ltd., (supra), has observed that : "9. As regards the restriction that the Cenvat credit of the tax paid under supplementary invoice would not be admissible when the tax paid is additional service tax not paid or short paid due to deliberate evasion, this restriction during the period prior to 1-4-2011 was only in respect of supply of inputs and capital goo....