Custom, Excise & Service Tax Tribunal
Ms Noida Cyber Park Pvt Ltd vs Ce & Cgst Noida on 8 August, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Service Tax Appeal No.70527 of 2019
(Arising out of Order-in-Original No.34/Pr.Commr./Noida/2018-19 dated
28/03/2019 passed by Commissioner of Central Goods & Services Tax, Noida)
M/s Noida Cyber Park Pvt. Ltd., .....Appellant
th
(A-4&5, Logix Park, 4 Floor,
Sector-16, Noida-201301)
VERSUS
Principal Commissioner of Central Goods &
Service Tax, Noida ....Respondent
(C 56/42, Renu Tower, Sector-62, Noida) APPEARANCE:
Ms Stuti Saggi, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70022/2023 DATE OF HEARING : 08 August, 2023 DATE OF DECISION : 08 August, 2023 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Original No.34/Pr.Commr./Noida/2018-19 dated 28/03/2019 passed by Commissioner of Central Goods & Services Tax, Noida. Vide the impugned order Learned Commissioner has held as follows:-
"(a) I disallow the CENVAT Credit and confirmed the demand of Rs.1,22,364/- (Rupees One Lakh Twenty Two Thousand Three Hundred Sixty Four only) along with interest under Rule 14 of the CENVAT Credit Rules, 2004.
(b) I impose a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two percent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the 2 Service Tax Appeal No.70527 of 2019 confirmed demand, under Section 76 of the Finance Act, 1994.
(c) I impose a penalty of Rs.5,000/- (Rupees Five Thousand only) upon the party under the provisions of Section 77 (1) (c) (iii) of the Finance Act, 1994."
2.1 Brief facts of the case are that the appellants were issued with a show cause notice dated 03.10.2012. One of the allegations that was made in the show cause notice was in respect of wrong availment of Cenvat credit of service tax paid on renovation of facilities at Logix Techno Park Map at Sector- 127, Noida. It was stated that the appellant has taken service tax credit of Rs.1,22,364/- on the basis of the invoice VCS/08- 09/06 dated 05.05.08 of M/s V.C. Solution Pvt. Ltd. This invoice was in respect of renovation of facility at Logix Techno Park Map at Sector-127, Noida whereas the appellant was registered as service provider as per ST-2 Certificate at M/s Noida Cyber Park (Pvt.) Ltd., C-28-29, Sector-62, Noida. It was also alleged that this credit has been taken on the basis of the photocopy of the invoice.
2.2 The show cause notice has been adjudicated as per the impugned order.
2.3 Aggrieved by the said order, appellant has filed this appeal.
3.1 I have heard Ms Stuti Saggi, Learned Advocate appearing for the appellant and Shri Santosh Kumar, Learned Authorized Representative appearing for the Revenue. 3.2 Arguing for the appellant learned Counsel referring to a letter dated 16 March, 2019 submitted to the Principal Commissioner during hearing in respect of the show cause notice submitted that services were in fact received and used by the appellant on renovation of their office, which is not disputed. There is no dispute that these services are not covered by the definition of the input service as per Rule 2 (l) of Cenvat Credit Rules, 2004. Credit is sought to be denied only for the reason that the address shown on the invoice is not the one which is mentioned in the ST-2 certificate. She refers to various case 3 Service Tax Appeal No.70527 of 2019 laws wherein service tax in similar circumstances has been allowed.
3.3 Learned Authorized Representative reiterates the findings referred in the impugned order.
4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of argument.
4.2 The only issue for consideration in the present appeal is whether the Cenvat credit of service tax paid on input services which received by the appellant on the premises not indicated in their ST-2 certificate (registration certificate), can be allowed.
4.3 I find that the issue is no longer res integra and the Tribunal has in series of cases held that so far as the receipt of input services by the output service provider is not in dispute. The credit cannot be denied merely for the reason that these services were received at the premises other than the registered premises or the invoices against which the credit has been availed while showing the name of service recipient some other address which is not mentioned in the ST-2 certificate. Some of the decisions are referred below:-
Bridal Jewellery Mfg. Co. [2018 (10) G.S.T.L. 70 (Tri.-All)]
5. Having considered the rival contentions, I find that it is an admitted fact that the appellant has got only one manufacturing unit at "179, NSEZ, Noida" and another unit of appellant was working as Head office at "2705, Basement, Bank Street, Karol Bagh, New Delhi". It is further admitted fact that there is no separate business activity in their Head office other than the business of manufacture and export of jewellery. I further take notice of the practice that business concerns normally take loan facilities and/or banking facilities from a Bank Branch located near to the Head office for the sake of administrative convenience and business exigencies. Further, the Bank Officers have certified that the services provided to the appellant, the invoice of which addressed to the Head office are 4 Service Tax Appeal No.70527 of 2019 actually provided to the factory located at Noida. Under such admitted facts, I hold that the substantial benefit cannot be denied for mere technical or venial breach of the procedural law."
M/s Allspheres Entertainment Pvt. Ltd. [2015 (8) TMI 953-(CESTAT-Delhi)] "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 5 Service Tax Appeal No.70527 of 2019 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."
M/s Manipal Advertising Services Pvt. Ltd. [2010 (19) S.T.R. 506 (Tri.-Bang.)]
7. If a person is discharging service tax liability from his registered premises, the benefit of cenvat credit on the service tax paid by the service providers cannot be denied to the appellant, only on the ground that the said invoices are in the name of branch offices. There is no dispute that the branch offices are not registered with the service tax authorities and they are not discharging the service tax liability, obviously, as the appellant is discharging service tax liability on the services provided by branches.
8. We find that the document on which the appellant has taken the service tax credit, though in the name of branch office are actually being paid from the premises wherein the service tax registration has been taken. We find that the ratio of the 6 Service Tax Appeal No.70527 of 2019 decision of the Tribunal in the case of Stadmed Pvt. Ltd. (supra) and Gujarat Heavy Chemicals Ltd. (supra) though being delivered in respect of cenvat/modvat credit on the central excise duty it squarely applies to the case in hand."
M/s mPortal India Wireless Solutions P. Ltd. [2012 (27) S.T.R. 134 (Kar.)], "7. Insofar as requirement of registration with the department as a condition precedent for claiming cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the cenvat credit rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside."
4.3 In following cases it has been held that the CENVAT Credit cannot be denied for the reason that the appellant has produced a photocopy of the invoice. Such lapses have been held to be procedural lapse for which the credit availed will not become inadmissible.
➢ Steelco Hujarat Limited - [2010] 3 Taxmann.com 388. ➢ Pepsiso India Holding P. Limited [2017] 77 Taxmann.com
299. ➢ Shah Precicast P. Limited - [2012] 25 Taxmann.com 299 ➢ Dalmia Cement (Bharat) Limited [2016] 65 Taxmann.com 121 4.4 In view of the above settled decisions, I am of the opinion that the credit in the present case could not have been denied for the reason stated in the impugned order. Accordingly, I do not find any merits in the same and the same is set aside.
7Service Tax Appeal No.70527 of 2019
5. Appeal is allowed.
(Operative part of the order pronounced in open court) Sd/-
(SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp