Custom, Excise & Service Tax Tribunal
Shri R.G. Seth, Advocate vs Shri Pakshi Rajan, Ar on 30 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/1725- 1742/2010-SM [Arising out of Order-in-Appeal No. 164/2010 dated 11/5/2010 passed by Commissioner of Central Excise, Mangalore (Appeal).] 1. ST / 01735 / 2010 KIRAN DEVCHAND SHAH CCE, BELGAUM 2. ST / 01738 / 2010 SUVERNA MOHANLAL VORA CCE, BELGAUM 3. ST / 01739 / 2010 SHRUTI SUBODH SHAH, CCE, BELGAUM 4. ST / 01740 / 2010 NEETA SHANTILAL SHAH CCE, BELGAUM 5. ST / 01741 / 2010 SUBODH SHANTILAL SHAH CCE, BELGAUM 6. ST / 01725 / 2010 SANDEEP KANTILAL SHAH CCE, BELGAUM 7. ST / 01726 / 2010 UDAY BHAICHAND SHAH CCE, BELGAUM 8. ST / 01727 / 2010 SANJAY KANTILAL SHAH (HUF) CCE, BELGAUM 9. ST / 01728 / 2010 TRUPT AASHISH SHAH CCE, BELGAUM 10. ST / 01729 / 2010 PRAVEEN POPATLAL SHAH CCE, BELGAUM 11. ST / 01730 / 2010 MALATI POPATLAL SHAH CCE, BELGAUM 12. ST / 01731 / 2010 SHASHIKANT BHAICHAND SHAH CCE, BELGAUM 13. ST / 01732 / 2010 SUSHMA SHASHIKANT SHAH CCE, BELGAUM 14. ST / 01733 / 2010 RAKHI KIRAN SHAH CCE, BELGAUM 15. ST / 01734 / 2010 AASHISH KIRAN SHAH CCE, BELGAUM 16. ST / 01737 / 2010 SNEHLATA RASIKLAL SHAH CCE, BELGAUM 17. ST / 01736 / 2010 PRATIBHA KIRAN SHAH CCE, BELGAUM 18. ST / 01742 / 2010 SANDEEP KANTILAL SHAH CCE, BELGAUM Appearance: Shri R.G. Seth, Advocate For the Appellant Shri Pakshi Rajan, AR For the Respondent
Date of Hearing: 28/11/2016 Date of Decision: 30/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21320 - 21337 / 2016 Per : S.S GARG These are 18 appeals filed by different appellants arising out of common impugned order dated 11.5.2010 decided by the Commissioner (A) disposing of 23 appeals. The appellants have filed 18 appeals, and in respect of other five appeals, the assesse did not file the appeals as the amount was very less. By the impugned order, the Commissioner (A) has rejected the appeals of the appellants and confirmed the Orders-in-Original. Since the issue in all the 18 appeals is common, therefore all the 18 appeals are being disposed of by a common order. The details of the 18 appeals are given below:
Sl. No. Name of the appellant OIO & date Period Amount confirmed 1 Sh. Sandeep Kantilal Shah (HUF) 127/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.7,091/-
Rs.5,518/-2
Sh. Uday Bhati Chand Shah 122/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.9,455/-
Rs.7,356/-3
Sh. Trupti Aashish Shah 118/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.18,908/-
Rs.14,713/-4
Sh. Parveen Popatlal Shah 124/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.46,445/-
Rs.36,781/-5
Smt. Malati Popat Lal Shah 125/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.14,181/-
Rs.11,034/-6
Sh. Shahikant Bhaichand Shah 120/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.47,272/-
Rs.37,241/-7
Smt. Sushma Shahikant Shah 119/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.14,181/-
Rs.11,034/-8
Sh. Rakhi Kisan Shah 121/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.18,908/-
Rs.14,713/-9
Sh. Ashish Kiran Shah 112/2009 dt.12.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.45,665/-
Rs.35,531/-10
Sh. Kiran Devchand Shah 114/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.40,985/-
Rs.31,890/-11
Smt. Pratibha Kisan Shah 117/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.59,894/-
Rs.46,602/-12
Smt. Snehlata Rasiklal Shah 126/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.23,636/-
Rs.18,391/-13
Sh. Sujay Kantilal Shah 113/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.7,082/-
Rs.5,518/-14
Smt. Suvarna Mohanlal Vora 155/2009 dt.14.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.11,090/-
Rs.23,636/-15
Smt. Shruti Subodh Shah 128/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.23,636/-
Rs.18,391/-16
Smt. Neeta Shantilal Shah 116/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.23,636/-
Rs.18,391/-17
Sh. Subodh Shantilal Shah 127/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.23,636/-
Rs.18,391/-18
Sh. Sandeep Kantilal Shah 115/2009 dt.18.8.2009 10/2007 to 03/2008 & 04/2008 to 09/2008 Rs.7,564/-
Rs.5,885/-
2. Briefly the facts of the cases are that the appellants are registered with the Department under the category of renting of immovable property service for the premises Devchand House, Dr. Annie Besant Road, Worli, Mumbai which property stands in the name of Devchand Chotalal and others as per the property records. All the appellants are co-owners having different share in the above said premises. The said property is owned by 23 owners each having a specific share in the ownership rights and the said property has been rented out by the said 23 co-owners jointly to different entities. All the appellants are getting the rent in their individual names and each individual is a separate entity registered with the department separately paying service tax and filing ST-3 returns separately. On verification of ST-3 returns of the above appellants, Department noticed that the appellants had availed the CENVAT credit on the basis of invoices which were not in their individual name but were in the name of Shri D.C. Shah and Others. Thereafter individual show-cause notices were issued to all the appellants proposing to reject and to recover ineligible CENVAT credit with interest and penalties. The appellants while replying to the show-cause notices denied the allegation made in the show-cause notices and asserted that the CENVAT credit has been claimed in accordance with the provisions of law. By Orders-in-Original, the Assistant Commissioner confirmed the demand along with interest and imposed penalty of Rs.2,000/- under Rule 15(3) of CENVAT Credit Rules, 2004. Aggrieved by the said orders, appellants filed appeals before the Commissioner (A), who vide the impugned order decided all the 23 appeals. Aggrieved by the said order, 18 appellants have filed the present appeals.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the name D.C. Shah and Others is used synonymously with that of the individual co-owners of the block and that Dev Chand House is their family name which they have been using for decades. He further submitted that they have been availing CENVAT Credit in accordance with law except for one aspect with the invoices in support are in the name of D.C. Shah and Others, the family name representing 23 co-owners instead of individual names. He further submitted that the payment to all the service providers is made from the joint account maintained in the name of 23 co-owners. He also submitted that the invoices issued by the service provider clearly show address, nature of services, name of service, the service tax charged and details of registration of service provider as required. He further submitted that there is no dispute about the usage of said input service by the appellants for providing the output service viz., renting of immovable property service. The dispute is only in respect of names in the bills in respect of input services. He also submitted that it is only a technical or procedural lapse and CENVAT Credit should not be denied on procedural lapse. In support of his submission, he relied upon the following authorities.
i. Pharmalab Process Equipments Pvt. Ltd. Vs. CCE, Ahmedabad: 2009 (16) STR 94 ii. CCE, Vapi vs. DNH Spinners: 2006 (16) STR 418 iii. BSNL vs. CCE, Salem: 2008 (12) STR 139 iv. Mangalore Chemicals & Fertilizers Ltd. Vs. CCE: 1991 (55) ELT 437 (SC) v. Union of India vs. Bharat Aluminium Co. Ltd.: 2011 (263) ELT 48 vi. Dhampur Sugar Mills Ltd. Vs. CCE, Meeru: 2010 (260) ELT 106
5. On the other hand, the learned AR reiterated the findings in the impugned order and submitted that at the time of receipt of rent, each individual receives the rent from the separate rented person who are occupying separate portion of the building. The amount received as rent on which they have to pay service tax is shown separately and service tax is paid only on their individual receipt of rent after claiming SSI exemption. He also submitted that to claim SSI exemption and to pay the service tax on the balance amount, the appellants are showing their receipt of rent separately in their individual names but only at the time of availing CENVAT credit they receive one wholesale bill and avail credit proportionate to their share. He further submitted that the argument of assesses that this arrangement is for administrative convenience cannot be accepted. He also submitted that the law is very clear that no CENVAT credit can be availed by the individual on the invoices which is not in his name. In this regard, it is pertinent to reproduce the provisions of Rule 9 of CENVAT Credit Rules, which is reproduced herein below:
Rule 9 (2) 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:
Provided 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 taxable 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;
6. After considering the submissions of both the parties and perusal of the records, I find that there is no infirmity in the impugned order. It is necessary to reproduce the observation of the learned Commissioner (A) wherein he has observed as under:
Just because D.C. Shah & Co. signifies the 23 appellants, they cannot be allowed to avail the CENVAT credit individually on the basis of invoice which is in the name of D.C. Shah & Co. When all the appellants can get registered individually and separately and maintain all the records accordingly, what made them not to follow the same fashion in case of availment of CENVAT credit is not forthcoming. Under any circumstances an individual cannot avail CENVAT credit on the basis of invoices which is not in his name. The appellants are replying on cases wherein CENVAT credit was allowed to individual factory on the basis of invoices in the name of head office is irrelevant to the present case. The appellants are not branch offices and the D.C. Shah & Co. is not the head office. For registration sake all individual appellants are separate entities but only for availing CENVAT credit they are joint entity. This type of change of principle for separate purposes is not justified. Under this I hold that all the above appellants are not eligible to avail CENVAT credit on the basis of invoices issued in the name of D.C. Shah and Co. 6.1 Further, I have also gone through the case laws which has been relied upon by the counsel for the appellants and I am of the view that the said case laws are not applicable in the facts and circumstances of the present cases. The decisions relied upon by the appellants relates to the CENVAT credit of branch office and Head Office which is altogether different then the facts involved in the present appeals. Therefore, keeping in view the aforesaid discussions, I find no merit in the appeals of the appellants and uphold the impugned order by dismissing all the appeals of the appellants.
(Order was pronounced in Open Court on 30/11/2016.) S.S GARG JUDICIAL MEMBER rv 9