Custom, Excise & Service Tax Tribunal
M/S. Allspheres Entertainment Pvt.Ltd vs Cce, Meerut on 10 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court No.III
Appeal No. ST/51189/2015-ST-SM
(Arising out of OIA No.HPU/EXCUS/000/APPEALS-I/69/2014-15 dt.8.1.2015 passed by CCE(A), Meerut)
Date of Hearing 25.06.2015
Date of Order: 10.07.2015
For approval & Signature:
Honble Smt.Sulekha Beevi C.S., Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s. Allspheres Entertainment Pvt.Ltd. Appellant
Vs.
CCE, Meerut Respondent
Appearance:
Present for the Appellant: Shri Bimal Jain, CA Present for the Respondent: Shri R.K.Grover, AR Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial) Final Order No.52194/2015 Per: Sulekha Beevi C.S. Brief facts of the case are as below:-
1. The appellant is having office at Nainital which is registered with the Service Tax Department for providing taxable services, namely, Event Management Services. The appellant has also an office at Delhi which is unregistered. The appellants were availing Cenvat Credit for payment of their service tax liability. A Show cause notice dated 16.4.2014 was issued to the appellant alleging that the Cenvat Credit availed by them during the period 2011-12 is inadmissible as the credit is not supported by proper and valid documents. The allegation raised is that the invoices of the input services contained the address of Delhi office of the appellant which is unregistered premises. The proceedings were finalized by the Order-in-Original dated 27.8.2014 which disallowed the Cenvat Credit of Rs.1,87,391/- and imposed equal penalty alongwith interest. In addition, there was also imposition of late fee of Rs.20,000/- for late filing ST-3 returns under section 70 of Finance Act, 1994 read with Rule 7 of Service Tax Rules, 1994. Further, a penalty of Rs.10,000/- under section 77 of the Finance Act, 1994 was imposed. Aggrieved the appellants have filed appeal before the Commissioner (Appeals), who has upheld the order. Hence this appeal.
2. The main issue for consideration is whether the appellants are entitled to avail the Cenvat Credit on the strength of invoices/bills issued to their Delhi office which is unregistered with Service Tax Department.
3. Rule 4A of Service Tax Rules, 1994 speaks about invoices, bills and challans to be issued by the service provider. It states that invoices, bills and 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 and value of taxable service provided or agreed to be provided; and (iv) the service tax payable thereon.
It nowhere states that the address of person receiving taxable service should be a registered premises.
4. Again sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004 states that?no CENVAT credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document. The proviso to this Rule states that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service tax registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the CENVAT credit. This proviso also does not state that the premises of the recipient has to be a registered premises in order to avail the Cenvat Credit. Further it gives a discretion to the Deputy Commissioner/Assistant Commissioner to allow the credit on being satisfied that the goods or services covered by the document have been received and accounted for in the books of the account of the receiver.
5. In the show cause notice, there is no allegation that the input services were not received/utilized by the appellant. So also there is no dispute that such input services were not properly accounted. In the absence of any such dispute regarding availment of services and their utilization for payment of service tax or proper accounting of the same, the denial of Cenvat Credit of service tax paid by Nainital office of the appellant on the sole ground that the invoices issued are in the name of the appellants unregistered office at Delhi is unjustified. The head office which is registered with the Department has discharged the service tax liability. The defect in the invoices are only procedural lapse or rather a curable defect. In such circumstances, I am of the view that denial of Cenvat Credit by the authorities below is not justified.
6. It is seen that the appellant has filed the ST-3 return for the period October 2011 to March 2012 only on 30.12.2013 while the same was due to be filed on 25.4.2012. It is submitted that the appellant was under severe financial crisis and therefore due to lack of funds to pay service tax, the return also could not be filed within due time. The appellant has filed return and paid service tax along with interest before the audit of the Department. It is also stated that the appellant is a small company with paid up capital of Rs.1,00,000/- only and the total turnover for the relevant period is only Rs.42,70,594.65. Taking these aspects into consideration, I am of the view that the late fee imposed under section 70 of the Finance Act can be reduced to Rs.5,000/-. For the reason above, the penalty of Rs.10,000/- imposed under section 77 of the Finance Act, 1994 is set aside.
7. In the result, the impugned order to the extent of disallowance of Cenvat Credit of Rs.1,89,391/- is set aside with consequential relief to the appellant. The penalty of Rs.10,000/- imposed under section 77 of the Finance Act, 1994 is also set aside. The late fee imposed under section 70 of Finance Act for late filing of ST-3 returns is reduced to Rs.5,000/-. The appeal is partly allowed accordingly.
(pronounced in open court on 10.07.2015) (Sulekha Beevi C.S.) Member (Judicial) mk 5