H & R Johnson (India) vs Cce Raigad
- CitationAPPEAL NO. E/1875/12 Mum
Ratio decidendi
The rule this decision rests on
There is no time limit under the CENVAT Credit Rules, 2004 for availing credit of service tax paid on services rendered by a service provider during the relevant period, so credit availed belatedly is not for that reason inadmissible. Where the service provider's returns and treasury challan show that service tax on the invoices was discharged, the availment of CENVAT credit on those invoices cannot be denied merely because the service provider later surrendered its registration; the surrender of registration, after discharge of the liability for the relevant period, does not by itself negate the credit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPEAL NO. E/1875/12 Mum
(Arising out of Order-in-Appeal No. US/787/RGD/2012 dated 19.11.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
H & R Johnson (India) : Appellant
Versus
CCE Raigad
Respondent
Appearance
Shri Rajesh Ostwal, Advocate for Appellants Shri Ashutosh Nath, Asst. Commissioner (A.R.) for Respondents
CORAM:
Shri. M.V. Ravindran, Member (Judicial)
Date of Hearing : 01.04.2015 Date of Decision : 01.04.2015
ORDER NO.
Per : M.V. Ravindran This appeal is directed against Order-in-Appeal No. US/787/RGD/2012 dated 19.11.2012.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding denial of CENVAT credit to the appellant on an amount of service tax paid by the service provider on the construction services and manpower recruitment agency service. It is the case of the Revenue that the appellant has availed CENVAT credit for the year 2007-08 and 2008-09 on the invoices issued by Radhika Engineering; that the said Radhika Engineering has surrendered its licence on 16.04.2007 and hence the credit availed on the service tax by the appellant is incorrect. Appellant contested the issue before both the lower authorities on the ground that the service tax returns of Radhika Engineering indicate that they have paid the service tax liability on the invoices raised by them for the period 2005-06. It was also the submission by the learned Counsel that there is no time limit to avail CENVAT credit of service tax paid on the services.
4. I find both the lower authorities misunderstood the provisions of CENVAT Credit Rules, 2004. It is rightly pointed out by the learned Counsel that there is no time limit for availing CENVAT credit of service tax paid on the services rendered by the service provider during the relevant period. There is no dispute that the service provider rendered the services during 2005-06. It is seen from the list of invoices as produced by the appellant at page No.17 that the services availed from April 2005-06 and invoices are also raised during the same period. It is also undisputed that the appellant had produced the service tax returns filed by the service provider along with TR6 challan indicating discharge of service tax liability on the invoices raised during 2005-06.
5. In my considered view both the lower authorities should have got the details verified from the concerned Range of the service provider, if in doubt, instead of holding against the appellant. As regards the surrendering of licence by the Radhika Engineering, the service provider, I find that the service tax registration certificate was surrendered on 16.04.2007 for the services rendered on 2005-06 after service tax liability has been discharged. In my view if the service tax liability has not been discharged by the registered unit, Revenue will not accept surrendering the registration certificate. In the absence of any contrary evidence, I have to hold that the service tax paid by the service provider during 2005-06, though the appellant has availed CENVAT credit belatedly which is well within the provisions of CENVAT Credit Rules, 2004.
6. In view of the foregoing, I set aside the impugned order and allow the appeal.
(Dictated in Court)
(M.V. Ravindran) Member (Judicial)
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