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2024 (10) TMI 720
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....eal the issue involved is that whether the respondent can be denied Cenvat Credit of Rs.1,21,08,667/- in respect of services which were used at salt pans for manufacturing salt which was the raw material for manufacturing soda ash. On this issue, the case of the department is that since, the service was used outside the factory premises that is at salt pans which is not part of the manufacturing facility of the assessee, the credit is not admissible. 2. Shri Amal Dave, learned counsel appearing on behalf of the assessee in respect of the credit involved Rs.46,27,417/- submits that during the relevant period, there was no time limit prescribed either of 6 months or 1 year. Therefore, in absence of prescription of any time limit for availing the Cenvat credit, credit availed after 1 year from the date of invoice cannot be denied. He further submits that in this case all the invoices were issued prior to the amendment of the Cenvat Credit Rules, 2004 which prescribed time limit of 1 year. Therefore, even if 1 year period is prescribed, the same is not applicable to the invoices issued prior to the amendment. He submits that the issue has been consistently settled by this Tribunal i....
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....e is not admissible. We find that for arriving at this conclusion the Revenue has relied upon the provision 11 A and 11 B. These Sections nowhere prescribe about the time limit for availment of the Cenvat credit. Therefore, the borrowing of the provision of Section 11A and 11B is absolutely illegal and incorrect. As regard the amendment in Cenvat Credit Rules, 2004 prescribing the time limit of 1 year, the said amendment was made on 11.07.2014. Since in present case, entire period is up to 31.03.2012, the credit on the time limit cannot be denied. This has been held in number of judgments which are reproduced below:- a) In case of Roquette Riddhi Siddhi P Ltd vs. C.C.E.-Ahmedabad-II this Tribunal has passed the following order:- "4. We have carefully considered the submission made by both the sides and perused the records. We agree with the submission of learned Counsel that all the three issues are squarely covered by various judgments of this Tribunal. 5. As regard the issue A on the fact there is no dispute that all the invoices were issued prior to 18.09.2014. Therefore, the 3 rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 inserted with effect from....
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.... were prior to 01/09/2014 is required to be verified. The Original Adjudicating Authority is directed to do so, with the association of appellant to whom an opportunity would be given." As the issue has already been settled and no more res integra, therefore, we hold that appellants have correctly taken the cenvat credit on 18/09/2014 for the invoices issued prior to 01/09/2014. 7. In view of the above, we do not find any merit in the impugned orders and the same are set aside. In the result, appeals are allowed with consequential relief, if any." b) In the case of Aalidhra Textool Engineers Pvt Ltd (Supra) this Tribunal held as under:- "4. I have considered rival submission. I find that the issue is squarely covered by the decision of Hon'ble High Court of Delhi in the case of Global Ceramics Pvt. Ltd., (supra) wherein following has been observed: 17. There is substance in the contention of the Learned Counsel for the Assesses in both the cases that the above amended provision cannot be given retrospective effect. As explained in Eicher Motors Ltd. v. Union of India (supra) the rule of lapse of credit lying with it unutilized on the dat....
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....sing a period of limitation, could not be given retrospective effect. 21. The Gujarat High Court in Filco Trade Centre Pvt. Ltd. v. Union of India (decision dated 5th September, 2018 in SCA No. 18433/2017) [2018 (17) G.S.T.L. 3 (Guj.)] followed the dictum of the Supreme Court in Jayam & Co. v. Assistant Commissioner (supra) and reiterated that the input tax credit could not be denied on the basis of an amendment, which is prospective. The question dealt with by the High Court was whether Section 140A(3)(iv) of the CGST Act, which declined the Cenvat credit in relation to goods purchased prior to one year from the appointed date, could be given retrospective effect. In answering the question in the negative, the Gujarat High Court held as under : "30. To sum up we are of the opinion that the benefit of credit of eligible duties on the purchases made by the first stage dealer as per the then existing CENVAT credit rules was a vested right. By virtue of clause (iv) of Sub-Section (3) of Section 140A such right has been taken away with retrospective effect in relation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to....
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....ibunal has passed the following order:- "4. On careful consideration of the submissions made by both the sides and perusal of the records, I find that the Jetty is a captive active Jetty of the appellant, which is exclusively used by the appellant, only. At time, the appellant have to get the Dredging done at the Jetty for proper function of Jetty to improve the draft. Since Jetty is used primarily for import of coal which is used in the manufacture of final product, Dredging Service is qualified as input service. It is also a fact that Dredging Service is nothing to do with the customer to whom final product is sold. The service charge of Dredging Service is borne by the appellant only, which stands absorbed in the overall cost of manufacturing of cement. Therefore, it cannot be said that the Dredging Service is used for the removal of final product from place of removal. Also as per Hon'ble Bombay High Court judgement in the case of CC Ex., Nagpur vs Ultratech Cement Ltd 2010 (20) STR 577 (Bom.) it was held that if the cost of input service is borne by the assessee and the same stand absorbed in the cost of final product, such services are qualified as input services and....
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....Satara which are situated for away from the manufacturing unit of the appellant can be said to have used for manufacture of final product at Waluj, Aurangabad. Mainly because admittedly such electricity generated at Supa and Satara is adjusted to the electricity used at Waluj. This adjustment is admitted by the revenue and in view of this adjustment, it can safely be stated that the electricity generated at Supa and Satara is the electricity used at Waluj. 4] Question no.1 is main bone of contention between the parties. Even the law on this subject is very well settled by atleast three prominent judgments of our High Court reported in 2010 (20) S.T.R. 589 (Bom.) = 2010-TIOL- 686-HC-MUM-ST in the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement 2010 (260) E.L.T. 369 (Bom.) 2010-TIOL-745-HCU- ST in the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement Ltd. And 2013 (32) S.T.R. 532 (Bom.)=2013-TIOL-212-HC-MUM-Cx in the case of Deepak Fertilizers & Petrochemicals Corporation Ltd. Versus C.C.Ex.Belapur. The question between the parties is whether the respondent was entitled to credit on management, maintenance or repair services provid....
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.... provider of output service, which receives invoices Issued under rule 4A of the Service Tax Rules 1994 towards purchases of input services and issues invoice, bill or, as the case may be, challan for the purposes of distributing the credit of service tax paid on the said services to such manufacturer or producer or provider, as the case may be. Rule 3. CENVAT Credit: (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit of - [xl] the additional duty of excise leviable under [Section 85 of Finance Act, 2005 (18 of 2005)] paid on - (i) any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September 2004; and [ii] any input service received by the manufacturer of final product or by the provider of output services on or after the 10 th day of September, 2004 Including the said duties, or tax, or cess paid on any input or input service, as the case ay be, used in the manufacture of intermediate products, by a jobworker availing the ben....
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....ivities" in relation to business is also discussed in this judgment by referring to judgment of Apex Court. In the case of Deepak Fertilizers & Petrochemicals Corporation Ltd. Versus C.C.Ex. Belapur [cited supra] the Division Bench held as under: "The definition of the expression input service covers any services used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. The words 'directly or indirectly' and 'in or in relation to' are words of width and amplitude. The subordinate legislation has advisedly used a broad and comprehensive expression while defining the expression input service'. Rule 2(1) initially provides that input service means any services of the description falling in subclauses (1) and (II). Rule 2(1) then provides an inclusive definition by enumerating certain specified services. Among those services are services pertaining to the procurement of Inputs and inward transportation of inputs. The Tribunal, proceeded to interpret the inclusive part of the definition and held that the Legislature restricted the benefit of Cenvat credit for input services used in respect of i....
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....ntenance service is admissible for Cenvat credit in terms of rule 2 (l) of Cenvat Credit Rules, 2004. Accordingly, the impugned orders are set aside. Appeals are allowed." 6.2 From the above judgments, it can be seen that even though services were provided outside the factory premises but the same is in relation to the manufacture of the final product of the appellant the credit was allowed. Following the said judgments, in the present case also the appellant are entitled for the Cenvat Credit in respect of renting of immovable of property i.e. warehouse located outside the factory premises. 7. As regard the issue C, the credit was denied on the ground that the invoice is bearing the address of head office. We find that there is no dispute that the service was received by the appellant in their factory. Even though the address of head office is mentioned but so long the input service was received by the appellant for their factory, the credit cannot be denied. There is no case of the department that the credit on such invoice has been taken in appellant's other unit. This issue has been considered by this Tribunal in the case of Madhya Pradesh Consultancy Organiza....
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.... invoices, bills and challans shall be serially numbered and shall contain the following, namely-(i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; (iii) description and value of taxable service provided or agreed to be provided; and (iv) the service tax payable thereon. Further, sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004 states that no Cenvat credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document. The proviso to this Rule states that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service tax registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, ....
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....ollows : "9. Regarding denial of Cenvat credit on the ground that the invoices were addressed to unregistered premises of the appellant, we note that there is no dispute regarding eligibility of input service for availability of credit to the appellant. The denial of credit is only with reference to address in the document. We find in various decisions, this Tribunal held that the credit cannot be denied on this reason. Reference can be made to the decision in Manipal Advertising Services Pvt. Ltd. (supra). We also note that in the appellant's own case on the same issue, the Original Authority for the later period held that denial of credit cannot be justified on this ground, vide order dated 21-7-2016." 18. This is what was also held by a Division Bench of the Tribunal in Pernod Ricard India Private Limited. 19. Once the requirement of Rule 4A of the 1994 Rules and Rule 9 of the 2004 Rules are satisfied, the benefit of Cenvat credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of Cenvat credit on the unregistered premises. 20. The Commissioner has further held that the benefit of Cenvat credit for....
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....the following judgments:- A) In the case of Parry Engg & Electronics P. Ltd. (supra), the issue involved was that the service was received in connection with the windmills of generation of electricity which is located outside the factory premises. The Revenue has disputed the credit only on the ground that the service was received outside the factory premises. The Larger Bench of the Tribunal, Ahmedabad clearly answered the question in favour of the assessee whereby it was held that even if the service is received outside the factory but in relation to the manufacture of the final product, the credit cannot be denied. B) Similar issue was considered in the case of Swiss Glascoate Equipments (supra) wherein, the repair and maintenance service of wind mill was used which is located outside the factory premises. The Tribunal in this matter after considering the various judgments passed the following order: "From the above judgment, it can be seen that the issue is identical in the present case as in the above cited case. Therefore, the ratio of the above judgment is applicable in the present case. Accordingly. irrespective of the fact that windmill is locate....