Dcw Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No.74/2008, dated 28.10.2008 passed by the Commissioner of Central Excise (Appea
Ratio decidendi
The rule this decision rests on
Where a document lacks the form prescribed for an invoice, its substance rather than its form governs a claim for Cenvat credit; the claim is to be tested by an enquiry into the genuineness of the debit note and the identity of the parties, with the appellant given the opportunity to co-operate and to be heard on the result, so that the Revenue is protected against a double claim on both the debit note and any later invoice. Service tax paid on services that are integral to the business, or that are used for the maintenance of its plant or the protection of its property and records (windmill maintenance, pest control, insurance, and vehicles employed in the factory), is admissible as Cenvat credit, whereas service tax on services not attributable to the output or output service (taxi and air ticket services) is not.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.74/2008, dated 28.10.2008 passed by the Commissioner of Central Excise (Appeals), Madurai ]
DCW LTD. APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI RESPONDENT
Appearance:
For the Appellant Shri C. Seethapathy, Adv.
For the Respondent Shri K.P. Muralidharan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 08-05-2015
FINAL ORDER NO. 40549 / 2015
While appellant says that the debit notes on letter heads issued by the service providers are good invoices in the absence of any form prescribed law in that regard and the appellant is entitled to the Cenvat credit of the service tax paid in respect of the services covered by those debit notes, Revenue rejects that.
2. Secondly, service tax paid on windmill maintenance service, taxi service, authorised service station service, pest control service, air ticket service and insurance service, entitle the appellant to avail Cenvat credit thereof because those services were used for the purpose of business of the appellant.
3. Revenue not only objects to the debit notes on letter heads on the ground that law prescribes certain procedure to entertain a document as invoice which should show the service tax paid, description of service, registration status of service provider and address of both parties, but also Cenvat credit of service tax is not admissible not being relevant to business.
4. Heard both sides and perused the records.
3. Law requires evidence to show provision of service, value thereof, identity of provider and recipient thereof and service tax charged to protect interest of Revenue. Therefore, it would be proper for the Adjudicating authority to enquire from the concerns which had issued debit notes/letter heads, as to whether the particulars mentioned therein are correct and provision of service covered by those debit notes/letter heads were really provided to the appellant. Upon conduct of enquiry, if the authority is satisfied as to genuineness of the debit note and identity of the parties, the form of invoice shall not be material but substance thereof shall govern the claim. This enquiry shall provide immunity to Revenue to prevent double claim of Cenvat credit one on the basis debit notes/letter heads and subsequently on the basis of invoices if any.
4. The appellant shall co-operate with the authority providing details of the service provider and also the amount of service tax paid through debit notes/letter heads for causing enquiry. Consequent upon enquiry the result of enquiry shall be exposed to appellant for defence if any and considering the submission on both on fact and law as may be advanced before the Authority appropriate order shall be passed granting fair opportunity of hearing.
5. So far as maintenance of windmill is concerned, the service provided towards maintenance thereof entitles the appellant to the Cenvat credit of the service tax paid in that regard.
6. So far as the claim of Cenvat credit on taxi, air ticket service is concerned, that not being attributable to the output or output service, appellant shall not get any credit in respect of such services.
7. So far as pest control service is concerned, that being an integral part of the business to protect the records, it would be proper to grant Cenvat credit on the service so availed.
8. So far as insurance service is concerned, this being taken to protect the property of the business concerned, the service tax paid for such service has to be allowed as Cenvat credit.
9. The vehicles employed in the factory appears to be related to business and accordingly Cenvat credit in respect of such services is allowed.
10. Appeal is partly allowed and partly remanded to the Adjudicating authority on the issue of invoice.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 21-05-2015
DRAFT Remarks
I II III
Date of dictation 08.05.2015
Draft Order - Date of typing 08.05.2015 20.05.2015
Fair Order Typing 21.05.2015
Date of number and date of dispatch 21/05/2015
5 E/00493/2008
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