TaxTMI 
TaxTMI 
2023 (8) TMI 1316
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....ervices on the strength of supplementary invoices under rule 14 of CENVAT Credit Rules, 2004 read with proviso to section 11A (1) of the Central Excise Act, 1944 alongwith interest as provided under section 11AB of the Act as proposed in the Show Cause Notice No 06-Commr./Alld./2011 dated 22.03.11. 2. I also impose a penalty of Rs 2000/- only under rule 15 of the Cenvat Credit Rules, 2004 as applicable during the impugned period. 3. In the same way, I disallow the Cenvat credit of Rs 87,859.69 (S Tax Rs 84,915.48 + Ed Cess Rs 1976.50 + S & H Ed. Cess rs 967.71) under rule 14 of CENVAT Credit Rules, 2004 alongwith interest as proposed in the Show Cause Notice No 01/Dem/R-I/Rnkt/2011 dated 13.04.2011. 4. I also impose a penalty of Rs 87,859.69 on the party under rule 15 of the Cenvat Credit Rules, 2004 as applicable during the impugned period. 2.1 Appellant is manufacturer of excisable goods and are availing the CENVAT Credit as admissible to them in terms of CENVAT Credit Rules, 2004. 2.2 During the period from 2008-09 till December 201, Appellant received services from various contractor for provision and execution of various works such as maintenan....
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....y service providers, are proper and valid documents for availing Cenvat credit in terms of Rule 9(1)(f) of the credit rules. ➢ In absence of any dispute on receipt of input services by Appellant as well as tax paid nature such services utilized in manufacture of dutiable finished goods, Cenvat credit cannot be denied to Appellant in terms of the proviso to rule 9 (2) of the Credit Rules. Cyber park Pvt Ltd [2023 (8) TMI 604 Cestat Allahabad Polyplex Corporation Ltd. [2019 (4) TMI 123 Cestat Allahabad Delphi Automotive Systems (P) Ltd. [2013 (12 TMI 156 Cestat New Delhi. Secure Meters Ltd. [2010 (1) TMI 284 Cestat New Delhi ➢ Issue involved is no more res-integra. Restriction on availment of credit on the strength of supplementary invoices under Rule 9 (1) (b) of the credit Rules not applicable to the cases supplementary invoices issued by service providers. Instead , a specific restriction on the credit availment on basis of supplementary invoices issued by input service provider was inserted w.e.f 1.04.2011 vide Rule 9 (1) (bb) which is prospective and not applicable prior to 01.04.2011. ➢ Show cau....
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....nterpretation. 6.3 Here it is pertinent to discuss the nature of the document issued by the service provider. In the present case as admitted by the party they were receiving the taxable services of the various service providers on the presumption that the services are not taxable. It was during the course of audit of the records of the party it was found by the department that the services were taxable and then the service providers naturally had obtained the Service Tax Registration and paid the tax by raising supplementary invoice. Service Tax on the basis of such supplementary invoice was paid by the party and now they are claiming service tax credit on the basis of such so called "supplementary invoices." The conduct of the party does not appear to be bonafide in as much as it is very difficult to comprehend as to how such a big concern dealing with the Central Excise & Service Tax department and also registered in the Service Tax under section 69 of the Finance Act, 1994 was unaware about the taxability of Services received by them and that too to such a extent involving Service Tax liability of crores of rupees. 6.4 In the case of manufacturer a supplementa....
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....pertinent to mention here that the supplementary invoices on the basis of which the party is claiming Cenvat credit of input services have been issued by the service provider at much later date. There is no cross reference of any earlier invoice issued by the service provider to establish any co-relation between the service provided, value of the service so provided, period during which service was provided and the actual value of service received by the party. In absence of any co-relation it is not possible to establish that the supplementary invoices issued by the service provider are only in relation to the services already provided to the party. 6.9 Apart from the fact that a supplementary invoice issued by the service provider is not a proper document under rule 9 of the Cenvat Credit Rules, 2004, rule 9(5) of the Cenvat Credit Rules. 2004 states that the burden of proof regarding admissibility of Cenvat credit shall be on the manufacturer of the final product or the provider of the output service. In the present case before me the party has availed the Cenvat credit of input services as a manufacturer in respect of input services which were provided much before 2008....
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....ided/ received and value of taxable services paid earlier. The party has failed to discharge this obligation. In this regard I place reliance on the following case laws:- (I) In the case of Steel Authority of India Limited versus Commissioner, Central Excise. Raipur 2007 (208) E.L.T. 367 (Tri. - Del.)]-the Hon'ble Tribunal observed - "Assessee failed to produce any supporting documentary evidence regarding period/duration of use of such C I/Steel rolls before sale/removal of same as waste and scrap- No efforts made by assessee to substantiate their claim...... [Emphasis supplied] (II) Also, in the case of WHIRLPOOL OF INDIA LTD. Versus UNION OF INDIA [2001 (137) EL.T. 42 (P&H)] the Hon'ble High Court of Punjab & Haryana at Chandigarh held that- "34. The submission is misconceived. The petitioner has come with a complaint against the action of the authorities. The merits have been examined. It has failed to 6 substantiate its claim. Thus, the relief as prayed for cannot be granted." [Emphasis supplied) (III) In the case of Commissioner of Central Excise, Bangalore v. Brindavan Beverages (P) Ltd. & Ors. [(2007) 5 SCC 3881, the Apex....
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....y. (iv) Jindal Vijay Nagar Steels Ltd., Vs. CCE, 2005 (192) ELT 862. Here also the supplementary invoices were raised by the input supplier on account of additional payment of Central Excise duty. (v) Secure Meters Ltd., Vs. CCE, Jaipur-11-2010 (18) STR 490 (Tri-Del.) The issue involved in this case was that at the time of providing taxable services the service provider did not have any service tax registration. Whereas in the present case the issue involved is whether supplementary invoice issued by the service provider is a genuine document under rule 9(I) of the Cenvat Credit Rules, 2004. 6.13 Other case laws cited by the party are on the issue that Cenvat credit cannot be denied on the grounds of procedural lapses. However even in the case of CCE. Madras Vs. Home Ashok Leyland Ltd.-2001 (134) 11 647 (Madras) Hon'ble High Court of Madras has held that the substantive right conferred by Rule 57A is not to be whittled down unless the legislative intention to so whittle down has been set out expressly or is necessarily implicit in any part of the statute or the rules. In the present case before me as per rule 9(1)(b) of the Cenvat Credit Rule....
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.... Excise Act. 1944 alongwith interest as provided under section 11AB of the said Act. Since the ingredient of suppression of fact, mis- representation etc. with intent to evade payment of duty is establish in both the cases as discussed in the foregoing paras, the party is also liable for penalty under rule 15 of the Cenvat Credit Rules, 2004, as applicable during the material time." 4.3 The entire case of the revenue rests on the interpretation of Rule 9 (1) of the CENVAT Credit Rules, 2004. The text of the said Rule is reproduced below Rule 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 : a) an invoice issued by- i) a manufacturer for clearance of - (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; ii) an importer; iii) an importer from his d....
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....ance and payment of Central Excise Duty/ Countervailing duty, sub rule 1 (e), (f) and (g) prescribes the documents against which the CENVAT Credit of Service Tax could have been taken. Sub-rule 1 (b) makes the distinction between the invoices issued at the time of clearance of goods and those issued subsequently as supplementary invoices. There is no such distinction made in this regard in respect of the documents prescribed for availing the CENVAT Credit of service tax paid. Any invoice issued after 10.09.2004 by the provider of input service provider has been prescribed as valid document for availment of CENVAT Credit. The demand made against the appellant by invoking Rule 9 (1) (b) is contrary to the scheme of the Rule 9 (1). Similar view has been expressed by the tribunal in following cases: Usha martin Limited [2023 (5) TMI 719 Cestat Kolkata]. "Further, the issue as to whether the supplementary invoices are specified documents in terms of Rule 9(1)(f) of CCR 2004, we find that this issue is also no longer res-integra as it is settled by the decision of the co-ordinate Bench of this Tribunal in Delphi Automotive Systems (P) Ltd. vs. Commissioner of C.EX., Noi....
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....Salem v Sakthi Sugars Ltd, 2014 (36) S.T.R. 1125 (TriChennai)" Lafarge India (P) Ltd [2019 (2) TMI 1028 Cestat Kolkata] 7. The basic dispute is whether the appellant was entitled to avail the Cenvat credit on the service tax paid by the service provider. At the time of the issue of the original invoices for the activity performed by the service provider, only the value of the service was billed. After becoming aware of the service tax liability the service provider paid the service tax liability in full along with applicable interest. Supplementary invoice was issued for recovery of such service tax paid by them from the appellant. It is to be mentioned that supplementary invoice dated 30.4.2007 was accompanied by an annexure giving the full details of the original invoices along with the service tax amounts payable on each such invoice. The payment of the service tax along with interest by the service provider by means of challans is not disputed. 8. After careful consideration of the issue we are of the view that the Cenvat credit of the service tax cannot be denied to the appellant. We find that a similar issue has come up before the Tribunal in the ca....
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....l.). 4. I have heard ld. Advocate Ms. Sukriti Das for the appellant and ld. DR Shri M.R. Sharma for the respondent. 5. The short point involved in the present two appeals is the availment of Cenvat credit by the appellant on the basis of supplementary invoices issued by the service provider. The service provider issued invoices to recover the value of the taxable service initially. It is also on record that he has issued supplementary invoices after getting himself registered and payment of service tax. Such supplementary invoices have also been raised well after 14 days limit laid down by Rule 4A of Service Tax Rules, 1994. 6. It is not disputed that the service provider has raised the invoice for recovery of service tax. There is also no dispute that these service tax amounts which are relatable to the service rendered by service provider to the appellant. Based on such supplementary invoices the Cenvat credit has been availed by the appellant on cargo handling services which have been used by the appellant. The main lacuna based on which the authorities below have ordered for recovery of the Cenvat credit is that the service provider was not registered....
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.... of JSW Steel (Supra) wherein the Hon‟ble High Court also allowed the Cenvat credit under similar circumstances with the following observations. "15.5 Having said so, we notice that Rule 4A of the Service Tax Rules, 1994, inter alia, at the relevant time, required the provider of taxable service, to issue, not later than fourteen days from the date of provisioning of taxable service, an invoice, bill or challan. The details, which were to be provided in such an invoice, bill or challan, are also set out in the Rule. 15.6 A bare perusal of the Rule would show that the obligation, in that behalf, essentially rests on the service provider. The Rule does not advert to any consequences, in case issuance of invoice, bill or challan is delayed. The period provided appears to be directory and not mandatory. Nothing to the contrary has been articulated by the Revenue. 15.7 Furthermore, even in the grounds raised in the appeal, the Revenue, apart from articulating that the Tribunal failed to take into account the fact that the assessee had claimed CENVAT credit based on ineligible documents, it, sought to emphasise the factum of delay in the claim being made ....
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....osited electronically through internet banking, or, in any other case, the 5th day of the month, as the case may be, immediately following the quarter in which the payments are received, towards the value of taxable services : Provided further that notwithstanding the time of receipt of payment towards the value of services, no service tax shall be payable for the part or whole of the value of services, which is attributable to services provided during the period when such services were not taxable : Provided also that the service tax on the value of taxable services received during the month of March, or the quarter ending in March, as the case may be, shall be paid to the credit of the Central Government by the 31st day of March of the calendar year. Explanation.- For the removal of doubts, it is hereby declared that where the transaction of taxable service is with any associated enterprise, any payment received towards the value of taxable service, in such case shall include any amount credited or debited, as the case may be, to any account, whether called "Suspense account" or by any other name, in the books of account of a person liable to pay servic....