AI Drafter 
TaxTMI 
TaxTMI 
2024 (12) TMI 1027
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....Section 75 respectively of the Finance Act, 1994; (ii) I disallow the CENVAT credit wrongly availed and confirm the demand of CENVAT credit of Central Excise duty/ Service Tax of Rs.2,12,82,576/- (Rupees Two crore Twelve lakh Eighty Two thousand Five hundred Seventy Six only) for the period April'2013 to March 2014 ( 2nd show cause notice dated 20.04.2015), under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73(1) and Section 75 respectively of the Finance Act, 1994; (III) Since out of an amount of Rs.14,98,45,423/- (Rupees Fourteen crore Ninety Eight Lakh Forty Five thousand Four hundred Twenty Three only) ( 1st show cause notice dated 06.08.2014), the CENVAT credit wrongly availed for the period April' 2009 to March 2013, confirmed at Para 16(1) above, an amount of Rs.93,192/- (Rs.13492/- + Rs.1700/ (Rs13492/-+ Rs.1700/- + Rs.78,000/-) (Rupees Ninety Three thousand One has already been reversed by the party along with Interest of 75,421/-(Rs.5479/- +Rs.1,283/- +Rs.68,659/-) (Rupees Seventy Five thousand Four hundred Twenty one only), I order for appropriation of the said amount and interest against the demand confirmed at Para 16(i) above fo....
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....rt bellow:- Chart-A Period Credit availed for the services utilized at unregistered premises (Rs.) 2009-10 6,81,050.00 2010-11 2,05,51,912.00 2011-12 0 2012-13 0 Sub Total 2,12,32,962.00 Chart-B Period Credit availed for the rent paid for unregistered premises (Rs.) 2009-10 5,88,940.00 2010-11 6,17,846.00 2011-12 0 2012-13 0 Sub Total 12,06,786.00 Chart-C Period Credit availed for the health checkup of new recruiter (Rs.) 2009-10 0 2010-11 1700.00 2011-12 0 Mobi 2012-13 0 Sub Total 1700.00 Chart-D Period Credit taken on the Xerox copy of invoices (Rs.) 2009-10 49,70,692.00 2010-11 67,39,320.00 Sub Total 1,17,10,012.00 Chart-E Period Credit availed on improper documents (Rs.) 2009-10 3,14,13,861.00 Sub Total 3,14,13,861.00 Chart-F Period Credit availed on the invoices in respect of Club Membership (Rs.) 2009-10 78,000.00 2010-11 0 2011-12 0 2012-13 0 Sub Total 78000.00 Chart-G Period Expenditure on AMC Rate of Service Tax including Cess Credi....
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....edit 1. 2013-14 Cenvat credit taken on AMC [Expenditure Rs.14,24,39,543.00] 1,74,39,814.00 2. 2013-14 Cenvat Credit taken on Event Management/ Mandap Keeper 12,75,688.00 3. 2013-14 Cenvat credit taken on debit note/ demand note/ credit note 2,12,82,576.00 TOTAL 3,99,98,078.00 2.4 Both the show cause notices were adjudicated as per the impugned Order-in-Original referred in para-1 above. 2.5 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Atul Gupta learned Counsel appearing for the appellant and Shri Manish Raj learned Authorized Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 We find that the issue involve in the present case is not res-integra, issue-wise decisions allowing the credit on the same facts are reproduced below:- Issue 1: CENVAT Credit disputed on invoices, which were showing billing address of Ahmedabad Office though POs clearly mentioned the services were used by the Appellant. • Mportal India Wireless Solutions Pvt Ltd [2012 (27) STR 134 (....
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....s of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of duty. Explanation-For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar document evidencing payment of additional amount of additional duty leviable under section 3 of the Customs Tariff Act; or (bb) a supplementary invoice, bill or challan --- [inserted by Notification No.13/2011-CE (NT), dated 31-3-2011]; ....
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....ccount, then in that case Cenvat credit may be allowed. 17.2 I find that Sub Rule (5) of Rule 3 of Cenvat Credit Rules, 2004 refers to invoice in Rule 9 of Cenvat Credit Rules, 2004. The 'invoice' referred in Rule 9 is either invoice issued by manufacturer i.e., as per Rule 11 of Central Excise Rules, 2002 or invoice mentioned in clause (f) of Rule 9(1) of Cenvat Credit Rules, 2004. Infact Rule 9 does not specifically refer to a particular kind of invoice to be issued by the provider of output service when he clears the Capital goods as such on which credit was taken earlier. Therefore, invoice referred in Rule 3 (5) of Cenvat Credit Rules, 2004 can be taken as the invoice as per Rule 11 of Central Excise Rules, 2002 or invoice issued as per Rule 4 A of Service Tax Rules, 1994. 18. Now, I refer to provisions of Rule 4 A of Service Tax Rules, 1994, applicable to service provider which are as under: "Rule 4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan- (1) Every person providing taxable service shall not later than fourteen days from the date of completion of such taxable service or receipt of any....
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....e registration number, address of the concerned Central Excise Division, name of the consignee, description, classification, time and date of removal, mode of transport and vehicle registration number, rate of duty, quantity and value, of goods and the duty payable thereon. Provided that in case of a proprietary concern or a business owned by Hindu Undivided Family, the name of the proprietor or Hindu Undivided Family, as the case may be, shall also be mentioned in the invoice. (3) The invoice shall be prepared in triplicate in the following manner, namely:- (i) the original copy being marked as ORIGINAL FOR BUYER; (ii) the duplicate copy being marked as DUPLICATE FOR TRANSPORTER; (iii) the triplicate copy being marked as TRIPLICATE FOR ASSESSEE. (4) Only one copy of invoice book shall be in use at a time, unless otherwise allowed by the Assistant Commissioner of Central Excise, or the Deputy Commissioner of Central Excise, as the case may be, in the special facts and circumstances of each case. (5) [* *i Omitted (6) Before making use of the invoice book, the serial numbers of the same shall be intimated to the Superint....
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....ecause a document is named debit note' particularly when the duty paid character or the use of Capital goods is not challenged in SCN. The only ground taken for denying credit in SCN was that credit was taken on debit notes which were not specified document under Rule 9 of Cenvat Credit Rules, 2004. It has been well settled law under Central Excise that the substantial benefit of Cenvat Credit cannot be denied on procedural grounds. 21.1 In case of CCE Nashik Vs M/s. Graphite (I) Ltd., [2007 (212) ELT 54 (Tri)], the CESTAT held that hyper technicalities should not be made for the basis of disallowing the Cenvat credit. Further, in the following cases the CESTAT has allowed credit on debit notes: (1) Shree Cements Ltd., Vs CCE, Jaipur [2013 (29) STR (Tri.Del)], and (2) Pharmalab Process Equipments Pvt.Ltd, [2009 (242) ELT 467 (Tri)]. 22. Relying upon the above judgments of CESTAT, I hold that the proposal for disallowing credit taken on debit notes does not stand. Since the demand itself does not stand, there is no question of interest and penalty. Therefore, the impugned Show Cause Notice is not sustainable." (ii) Further, by Order-i....
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....g the Cenvat Credit and hence the allegation made in the show cause notices that debit notes is not an specified document to avail Cenvat credit, is not justifiable and required to be set aside." (iii) By Order-in-Original No.74/STC-IV/MRRR/16-17 dated 30.06.2016 of Commissioner Service Tax IV Mumbai, demand on similar issues has been dropped by observing as follows:- "16. Submission in respect of the CENVAT credit availed on debit notes. a. CENVAT credit shall be allowed on basis of debit notes raised by service provider It will be evident from the above submissions that the company has entered in to agreement with various service providers for obtaining the service of passive telecom infrastructure. Para 8.2 and 8.3 of the agreement provides for manner of charging. The service provider raises invoices for the purpose of recovering the amount for the services provided by him as under : 1. infrastructure professional fees: The invoice is raised for this amount for providing passive infrastructure. 2. Site operation service fees: The amount represents the fees in respect of operations carried out on the site. 3. Reimburs....
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....ndise sent to be sent to him. A writing made on behalf of an importer, specifying the merchandise imported, and its true cost or value. Meaning of the word "bill" - As defined 0 'Oxford Dictionary' a word "bill" means- Statement of charges for goods supplied or services rendered, the amount owed, - As defined by "Black's Law Dictionary' a word "bill" means - written statement of the terms of a contract, or specification of the items of a transaction or of a demand. Also a general name for any item of indebtedness, whether receivable or payable; an account for goods sold, services rendered, or wont done. As a verb, as generally and customarily used in commercical transactions; "bill" is synonymous with "charge" or "invoice" 19. It is evident from the same that the bill is raised for recovery of the amount for goods or services supplied by the person raising the bill. It represents the amount payable by the person on whom the invoice or bill is raised. The documents raised by the service provider may be titled as debit not; but serves the same purpose of invoice or bill. The company is liable to pay to the service ....
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.... hence, are in nature of invoices - Credit not deniable. [pares 4, 5)" ii. Commissioner Of Central Excise, Indore Versus Grasim Industries Ltd. 2011 (24) S.T.R. 691 (Tri. - Del.) "CENVAT credit of Service tax Duty paying documents - Debit notes issued by service provider - Impugned order cEseloses that said debit notes contain all the details required to be mentioned in the invoice except for its name - Debit notes issued by the service provider can be treated as invoice - CENV AT credit availed on the basis of debit notes, admissible -Rule 9 of CENVAT Credit Rules, 2004. [2009 (239) E.L. T.39S (P & H) distinguished]. (Para 4), iii. Pharmalab Process Equipments Pvt. Ltd. 2009 (242) ELT 467 (T) "4. Commissioner (Appeals) also has taken the same view. However, from the copies of debit notes submitted during the hearing I find that the debit notes issued by the service provider contained the details of service tax payable, description of the taxable service (sales commission), value of the taxable service, registration no. of the service provider, name and address of the service provider. These are the details which are required as per Rule 9(2) of CENVAT Cr....
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....which is not a specified document under rule 9 of CCR, 2004. It is submitted that Quippo Telecom Infrastructure Ltd. has issued invoices and not debit notes for the reimbursement of diesel and electricity charges. They also submitted specimen copies of the invoices issued by the said vendor. It will be evident from the invoices attached that the caption "invoice" is indicated in tight corner of the document. Thus it will be evident from the above that Quippo Telecom Infrastructure has issued invoices and not debit notes which is specified document under rule 9(1)(f) of the CENVAT credit Rules 2004 for availing the CENVAT credit.. Thus they submitted that the demand in respect of the credit availed on the service tax paid to Quippo needs to be dropped. The total amount of service tax credit availed on the strength of the invoices issued by Quippo Telecom Infrastructure Ltd. Is Its. 3,79,19,638/- which is included in the demand of Rs.11,28,86,302/- which needs to be dropped in view of the above submission." They submitted that when the collection of service tax has been accepted by the department based on the said document. 4.3 Thus, following the ratio of these decisions where....