Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2016-17/3120

Whether credit can be availed on basis of debit notes?

Case:-HINDUJA FOUNDRIES LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I

Citation:-2016-TIOL-1158-CESTAT-MAD

Brief facts:-The brief facts were that the appellants have availed service tax credit of Rs.83,722/- based on the debit notes raised. The adjudicating authority had disallowed the credit of Rs.83,742/- and imposed penalty of equivalent amount and interest. Commissioner (Appeals) upheld the adjudication order.

Appellant’s contention:-The learned counsel for the appellant-company submitted that the service receiver had raised debit note instead of issuing invoice. Since they had availed service from the service provider and paid the consideration, they were eligible to avail credit. The debit note contained all details and description and service tax particulars. He relied upon the decisions of Tribunal in the cases of CCE, Jalaram Plastic Pack - 2014 (34) STR 66; CCE Vs Grasim Industries Ltd. - 2011 (24) STR 691 = 2011-TIOL-1660-CESTAT-DEL; Shree Cement Ltd. Vs CCE Jaipur II - 2013 (29) STR 77 (Tri.-Del.) and United Phosphorus Ltd. Vs CCE Surat - 2013 (30) STR 509 (Tri.-Ahmd.) = 2013-TIOL-793-CESTAT-AHM.

Respondent’s contention:-On the other hand, the learned AR for Revenue reiterated the findings recorded by both the authorities below. The demand amount is less than Rs. 2 lakhs and appeal need not be entertained and liable for rejection. He submitted that debit notes were not prescribed documents for availing CENVAT credit. He relied on the following decisions:-

- Parle Biscuits (P) Ltd. Vs. State of Bihar - 2005 (192) ELT 23 (SC) = 2004-TIOL-105-SC-CT

- CCE Vs. TFL Quinn India Pvt. Ltd. - 2013 (294) ELT 421 = 2012-TIOL-35-CESTAT-BANG

- Friends & Friends Shipping Pvt. Ltd. Vs. CCE - 2014 (35) STR 811

Reasoning of judgment:-On hearing both sides and on perusal of the records, it was found that the appellants had availed input service tax credit based on the debit notes for the input services received on professional fees, and internet tele-communication service amounting to Rs.83,722/-. The appellants relied upon the decisions of the Tribunal in the cases of Jalaram Plastic Work (supra) and Grasim Industries Ltd. (supra) wherein the Tribunal dismissed the Revenue's appeal and held that credit cannot be denied simply because service tax was paid on the basis of debit notes and not against proper invoices. The decision of the Tribunal in the case of Friends & Friends Shipping Pvt. Ltd. (supra), as relied upon by the learned AR, was not applicable to the present case as in that case the issue related to eligibility of service tax paid by the CHA on behalf of the appellant for the service rendered by Kandla Port Trust and Kandla Dock Labour Board where the CHA issued the debit note. In the present case, the appellant availed the credit on the service tax paid on professional fee and internet telecommunication service. In view of the Tribunal's decision, as relied upon by the learned counsel in the case of Shree Cement Ltd. Vs CCE Jaipur II (supra), the Hon'ble Tribunal's decision was squarely applicable to the facts of the present case. The relevant paragraphs of the Tribunal's order were reproduced as under :-

 3. Rule 9 of Cenvat Credit Rules, 2004 is a compendium Rule to deal Cenvat credit relating to goods and services. Invoices are normally issued for the goods cleared under Central Excise Rules, 1944. Similarly Bill of Entry is issued under Customs Act, 1962. Certificate is issued by Appraiser of Customs. A document issued in terms of Rule 9(1)(f) of Cenvat Credit Rules, 2004, i.e. an invoice, a bill or challan are used to claim Cenvat credit. Apart from that, there is a document issued under Rule 4A of Service Tax Rules, 1994 by distributor of input services to enable the beneficiary to get Cenvat credit. By express provision of law, legislature has used three terms i.e. ‘invoice', ‘bill', and ‘challan' in Rule 9(1)(f) of Cenvat Credit Rules, 2004.

The appellant's case falls under Rule 9(1)(f) of Cenvat Credit Rules, 2004 instead of falling under Rule 4A of Service Tax Rules, 1994. Therefore, claim under Rule 4A is rejected because the present appeal was not relating to service distribution.

An invoice is normally issued under Central Excise Act, 1944 while clearing goods and also when goods are traded. Legislature permitted a Bill of Entry to be issued under Customs Act, 1962 for the goods involved in clearance. Law has still gone on to say that certificate of an Appraiser of Customs is recognised to be an evidence to grant Cenvat credit. Accordingly, while enacting Rule 9(f) of Cenvat Credit Rules, 2004, legislature intended a ‘bill' issued shall also serve the purpose for claiming Cenvat credit. What a ‘bill' means is that which gives right to an actionable claim. A party raising the bill communicates its intention to the recipient of service making him aware of his contractual obligation and value involved to provide such service. That may be a substitute of invoice because of phraseology used in Rule 9(1)(f) of Cenvat Credit Rules, 2004.

Substance is more important than the format and the doctrine of substance over format is sanction of Rule 9(1)(f) of Cenvat Credit Rules, 2004. Accordingly, when Revenue did not find that the service tax realised through debit note had not gone into treasury, there was no scope to deny relief to the appellant. Added to this, the service provider had realised certain reimbursement of expenses while providing consultancy service in terms of debit note appearing at pages 51 to 55 of appeal folder. Therefore, once assessable value of service provider is intended to include even the reimbursement of expenses, the appellant cannot be denied benefit of Cenvat credit without finding no deposit of service tax by service provider.

Relying on the above decision of Principal Bench of this Tribunal, the appeal was allowed.

Decision:-Appeal allowed.

Comment:- The gist of this case is that debit notes issued are covered under the term “bill” used in Rule 9(1)(f) and therefore credit cannot be denied to the assessee stating that invoice was missing. It was held that ‘bill' means a document which gives right to an actionable claim. A party raising the bill communicates its intention to the recipient of service making him aware of his contractual obligation and value involved to provide such service. That may be a substitute of invoice because of phraseology used in Rule 9(1)(f) of Cenvat Credit Rules, 2004. Substance is more important than the format and the doctrine of substance over format is sanction of Rule 9(1)(f) of Cenvat Credit Rules, 2004. Accordingly, when Revenue did not find that the service tax realized through debit note had not gone into treasury, there was no scope to deny relief to the appellant. The substantial benefit of cenvat credit cannot be denied for procedural lapse.

Prepared by:- Prayushi Jain

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com