Western Coalfields Ltd vs Commissioner Of Central Excise, Nagpur

(Arising out of Order-in-Original No. 019/CEX/2014/C dated 22.4.2014 passed by Commissioner of Central Excise, Customs & Service Tax, Nagpur)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)

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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 :

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?

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Western Coalfields Ltd. Appellant Vs. Commissioner of Central Excise, Nagpur Respondent

Appearance: Shri S.N. Kapoor, Advocate, for appellant Shri V.K. Agrawal, Additional Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 12.1.2015 Date of Decision: 12.1.2015

ORDER NO

Per: P.K. Jain

The case was heard for some time and it was felt that the appeal itself can be disposed of at this stage and with the consent of both the parties, we are disposing of the appeal, after waiving the requirement of pre-deposit.

2. The appellant in this case has availed cenvat credit on the basis of invoices issued by M/s. P.P. Patel, Ahmedabad and M/s. Mahalaxmi Infra Contract Pvt. Ltd., Ahmedabad. The said two firms have provided services to the appellant and the agreement for providing the said services was entered into before 1.3.2011. The agreement provided that the rates would be inclusive of all taxes including the service tax. Since the appellant was not eligible to take credit of the service tax paid, they did not bother whether the service tax is being shown separately in the invoices or not. After 1.3.2011, for some time the invoices continued to be received in the same pattern and they availed credit of service tax. The Revenue is denying the credit of service tax on the grounds that the invoice does not indicate the service tax amount, assessable value and other details and in the absence of such details, the invoices produced are not valid and, therefore, the appellant cannot take the credit.

3. The appellants contention, on the other hand, is that though the invoices initially received did not have these details but they got the invoices amended from the service provider and later on, service provider has indicated all such details on the reverse of the invoices. It is also the contention of the appellant that they have also produced the copies of the registration certificate of the service provider, details of the payment made as also the service tax returns filed by the service provider. From these documents, it is very clear that the service providers have paid the service tax and thereafter only, they have availed the credit.

4. We find from the order-in-original that in the defence submission it is stated that the invoices were duly rectified. Keeping in view the overall facts and circumstances of the case, we consider it appropriate that the appellant will produce the copies of the relevant documents, i.e. amended invoices, registration certificate, details of the payment made by the service provider as also the service tax returns filed by the service providers. The Commissioner would verify the details given and can also verify from the jurisdictional Commissioner where the service providers are located, if required. On the basis of the details, the Commissioner would decide the eligibility of the cenvat credit. It is made clear that in case service tax has been made by the service provider and the credit taken is the same by the appellant, the appellant would be eligible to take cenvat credit.

5. The appeal is allowed by way of remand in above terms.

(Operative part pronounced in Court)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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