Custom, Excise & Service Tax Tribunal
M/S Hindustan Coca Cola Beverages Pvt. ... vs Cce & St, Meerut-Ii on 25 November, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 25.11.2013
E/STAY/57870/2013-EX[SM]
E/57277/2013
M/s Hindustan Coca Cola Beverages Pvt. Ltd. Appellant
Vs.
CCE & ST, Meerut-II Respondent
Appearance:
Shri Bimal Jain, CA - for the Appellant
Shri B.B. Sharma, AR - for the Respondent
Coram : Honble Ms. Archana Wadhwa Member (Judicial)
FINAL ORDER NO. 58473/2013
Per Archana Wadhwa:
After dispensing with the condition of pre-deposit of duty and penalty I proceed to decide the appeal itself in as much as the issue lies in a narrow compass.
2. The credit of service tax of Rs. 60,214/- has been confirmed against the appellant, which was availed by them during the month of April 2011 for the outdoor catering services received in March 2011. The lower authorities has observed that outdoor catering service was withdrawn from the definition of input service with effect from 01.04.2011 and though the services was availed in March 2011, but as the payment was made in April, the credit would not be available.
3. There is the no dispute on facts. The outdoor catering service was admittedly availed in the month of March 2011 itself, though the payment was made in the month of April 2011. As per the existing law during the relevant period an assessee could take the credit of service tax, only after the payment was made by him. It was in these circumstances that the appellant availed the credit in the month of April 2011 itself after making the payment. In as much as the services were received for the month of March 2011, when they were admittedly covered by the definition of inputs service. The issue stands decided by the Tribunal decision Reference can be made to order No. 1441-1442/2009(SM)(BR) dated 12.11.2009.
4. In any case I find that the along with the change in the Cenvat Credit Rules amendment was also made in sub Rule 4(7). The said rule, provideds as under:
Provided also that CENVAT credit in respect of an invoice, bill or, as the case may be, challan referred to in rule 9, issued before the 1st day of April, 2011 shall be allowed, on or after the day on which payment is made of the value of input service and the service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in rule 9.
5. As the clear from the above rule, for the service which have been received by the assessee before 01.04.2011, the credit of the service tax would be available even if the payment of the said appeal stand made on or after 2011. The issue also stand clarified by the Board circular No. 943/04/2011-EX dated 29.04.2011. Point 12 of the said circular clarifies that the credit on such service shall be available where the services have been completed before 01.04.2011. This means that where the services have been fully received prior to 01.04.2011, the credit of service tax paid on the service is available even though payment was made or after on 01.04.2011.
Though, both the above provisions i.e. rule 4(7) and the circular was placed before Commissioner (Appeal), he has chosen not to deal with the same. When the appellate authoritys attention was drawn to the provisions and the Board Circular he was bound to refer to the same so as decide the appeal in a fair manner.
6. In view of the above, I set aside the impugned order and allow the appeal with consequential relief to the appellant. Stay petition as also an appeal get disposed of is above manner.
Archana Wadhwa Member (Judicial) Neha 1