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 STUDY/2009-10/005
08 August 2009

 

CASE STUDY

 

INTRODUCTION

 

An assessee can take Cenvat credit of inputs procured by him or input services availed by him on the basis of an invoice or bill or challan issued by a service provider or a manufacturer as per provisions of Cenvat Credit Rules, 2004 and of the Service Tax Rules, 1994. Such a bill/invoice is required to contain certain details which have been prescribed by the afore-said Rules. However, not all the parties can issue invoices containing all the details like the banking & financial institutions. Therefore, can Cenvat credit be denied due to improper invoices issued by them even when the tax has been paid to the Government? The case which we have undertaken to study is based on this issue.

 

RELEVANT PROVISIONS

 

Rule 4A of the Service Tax Rules, 2004 :- Taxable service to be provided or credit to be distributed on invoice, bill or challan.- (1) Every person providing taxable service shall issue, not later than fourteen days from the date of completion of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier, an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him in respect of such taxable service provided or to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely:-

 

(i) the name, address and the registration number of such person;

(ii) the name and address of the person receiving taxable service;

(iii) description, classification and value of taxable service provided or to be provided; and

(iv) the service tax payable thereon. 

 

Provided that in case the provider of taxable service is a banking company or a financial institution including a non-banking financial company, or any other body corporate or any other person, providing service to any person, in relation to banking and other financial services, an invoice, a bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered, and whether or not containing address of the person receiving taxable service but containing other information in such documents as required under this sub-rule. 

 

Provided further that in case the provider of taxable service is a goods transport agency, providing service to any person, in relation to transport of goods by road in a goods carriage, an invoice, a bill or, as the case may be, a challan shall include any document, by whatever name called, which shall contain the details of the consignment note number and date, gross weight of the consignment and also contain other information as required under this sub­-rule. 

 

Provided also that where any payment towards the value of taxable service is not received and such taxable service is provided continuously for successive periods of time and the value of such taxable service is determined or payable periodically, an invoice, a bill, or as the case may be, a challan shall be issued by a person providing such taxable service, not later than fourteen days from the last day of the said period.

 

(2) Every input service distributor distributing credit of taxable services shall, in respect of credit distributed, issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him, for each of the recipient of the credit distributed, and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely:-

 

(i) the name, address and registration number of the person providing input services and the serial number and date of invoice, bill, or as the case may be, challan issued under sub-rule (1);

(ii) the name, address and the registration number of the said input service distributor;

(iii) the name and address of the recipient of the credit distributed;

(iv) the amount of the credit distributed.

 

Provided that in case the input service distributor is an office of a banking company or a financial institution including a non-banking financial company, or any other body corporate or any other person, providing service to any person, in relation to banking and other financial services, an invoice, a bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered but containing other information in such documents as required under this sub-rule.

 

CCE, Jodhpur v/s M/s Alcobex Metals Ltd

 

BRIEF FACTS OF THE CASE

 

-  The assessee is a manufacturer of Non-Ferrous Metal Rods, Pipe, Tube & Sections etc falling under sub-heading 7407. They were availing various services from Banking & Financial Institutions.

-  The said banking institutions were charging certain amounts from the assessee for the services provided by them which was inclusive of Service Tax which was deposited with the Government by them.

-  The banks were issuing debit advice to the assessee. The assessee has taken Cenvat credit of service tax paid to the banks on the basis of debit advice for the period September 07 to March 08.

-  The Department issued a show cause notice for disallowing the Cenvat credit taken by the assessee on the basis of said improper documents in contravention of the provisions of Rule 3 & 9 of the Cenvat Credit Rules, 2004 read with Rule 4 (A) of the Service Tax Rules, 1994. The Department also proposed to recover interest as well as penalty for contravening the provisions of the Cenvat Credit Rules and Service Tax Rules.

 

QUESTION FOR CONSIDERATION

 

The question for consideration before the Adjudicating Authority was whether the debit advice issued by the bank is an improper document for availing Cenvat credit. Whether there was contravention of the provisions of Rule 3 & 9 of the Cenvat Credit Rules, 2004 read with Rule 4 (A) of the Service Tax Rules, 1994?

 

CONTENTION OF THE DEPARTMENT

 

-  The Department contended that the said debit advices issued by the bank were improper documents for availing Cenvat credit.

-  They have contended that the proper document for availing Cenvat credit is a bill/invoice or challan which contained all the details as prescribed by the provisions of Rule 4 (A) of the Service Tax Rules, 1994 read with Rule 9 (1) (f) of the Cenvat Credit Rules, 2004. The debit advices on which the assessee has taken credit do not contain the details prescribed in the afore-mentioned Rules.

-  The assessee appears to have wrongfully availed Cenvat Credit for the relevant period and which is recoverable from them.

 

CONTENTION OF THE ASSESSEE

 

-  The assessee in its reply to the show cause notice, quoted Rule 4A of the Service Tax Rules, 1994 and have contended that the proviso to sub-rule (1) of Rule 4A gives relaxation for the Banking & financial institution regarding the prescribed details to be contained in the Bill/invoice/challan of a service provider.

-  The assessee contends that this has been done with a view that banking companies cannot comply with the complete requirements of the Rule. It is not possible for the banks to prescribe the complete details as per Rule 4A on the debit advices.

-  It is contended that there is no dispute that service tax was paid by the bank to the Government and recovered from them. Since there is no doubt about payment of Service Tax to the Government, then Cenvat credit should not be denied to the assessee merely because of procedural lapses.

-  The assessee has relied upon the case of CCE, Mumbai v/s Manish Engineering Corporation [2003 (162) ELT 670 (T-Mumbai)] in which the Hon’ble Tribunal has held as under: -

 

“Modvat/Cenvat - Deficiencies in invoice merely of procedural nature and not having adverse effect on duty paying character of goods - Invoice became valid on rectification and defaced by proper officer - Modvat credit availed on proper documents - Rule 57G of erstwhile Central Excise Rules, 1944.”

 

-  Assessee has also relied upon the case of Sewak Pharma v/s CCE, Mumbai-III [2004 (175) ELT 645 (Tri-Mumbai)] in which it was held as under:

 

“Cenvat/Modvat – Benefit of credit – Procedural lapses or technicalities cannot be resorted to deny substantive benefit of Modvat credit – Rule 57A of erstwhile Central Excise Rules, 1944 – Rule 3 of the Cenvat Credit Rules, 2004.”

 

-  On the basis of these judgments, the assessee has contended that from the said judgments it is clear that when there is no doubt about payment of Service Tax, Cenvat credit cannot be disallowed merely because of procedural lapses in the bills.

-  It was also argued that there is no dispute that –

·       Banks have charged service tax from them.

·       The same does not fall under the definition of “Input services” for the assessee.

·       They are eligible for taking credit as we are paying the excise duty on our final product.

The Hon’ble Tribunal in various judgments has held that when all the basic requirements of Cenvat credit should not be disallowed. Following the same analogy, it has been submitted that the credit should be allowed to them.

-  The assessee has also submitted certificates from the banks (that they are dealing with) certifying the amount of service tax paid on the bank charges paid by them.

 

JUDGMENT OF ADJUDICATING AUTHORITY

 

v       The Adjudicating Authority held that on the perusal of the provisions of Rule 4 A of the Service Tax Rules, 1994 it is clear that certain requirements as mentioned therein have been relaxed in the case of Banking & Financial Institutions. There is force in the arguments of the assessee.

v       The assessee has produced photocopies of the certificates issued by the concerned banks certifying that they have charged certain amounts from the assessee as a commission for various services rendered by them which is inclusive of Service Tax which has been deposited by them. The month wise details of service tax realised by the banks from the assessee has also been provided.

v       The Adjudicating Authority found that there is no dispute about payment of service tax by the Banks or the utilization of the same as input services or admissibility of the same by the assessee.

v       The Adjudicating Authority held that in many cases, the Hon’ble Courts/ Tribunals have held that when basic requirements of Cenvat scheme has been fulfilled, then Cenvat credit should not be disallowed for the procedural lapses or technicalities. Some of the cases have been relied upon by the assessee also.

 

DECISION OF ADJUDICATING AUTHORITY

 

The Adjudicating Authority held that the assessee have correctly availed the Cenvat credit of service tax paid by them to the various banks. Recovery proceedings initiated vide the impugned show cause notice are dropped.

 

COMMENTS & CONCLUSION

 

The Adjudicating Authority have correctly relied upon the provisions as well as the judgments of various Tribunals and concluded that procedural lapses or technicalities cannot come in the way of the right of an assessee to avail Cenvat credit, when it is clear that service tax has been deposited with the Government.  

 

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