Custom, Excise & Service Tax Tribunal
Commissioner, Central Excise & Service ... vs M/S Nav Bharat Metallic Oxide ... on 16 July, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/10798/2013 [Arising out of OIA-SRP/178/DMN/2012-13, dt.31.12.2012, passed by Commissioner (Appeals), Central Excise & Customs, Daman] Commissioner, Central Excise & Service Tax, Daman Appellant Vs M/s Nav Bharat Metallic Oxide Industries P. Ltd. Respondent
Represented by:
For Appellant: Shri Anand Nainawati, Advocate For Respondent: Shri G. Jha, Authorised Representative For approval and signature:
Honble Mr. H.K. Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL) Date of Hearing/Decision:16.07.2015 Order No. A/11020 / 2015 dt.16.07.2015 Per: H.K. Thakur This appeal has been filed by the Revenue for reversal of OIA No.SRP/178/DMN/2012-13, dt.31.12.2012 passed by Commissioner (Appeals), Vapi, Gujarat. It has been held by the First Appellate Authority that Debit Notes, on the basis of which CENVAT Credit was taken, are not specified documents in Rule 9 of the CENVAT Credit Rules, 2004 (CCR) but has allowed the appeal of the Appellant (Respondent in present proceedings) on the ground that documents contain all the details required in Rule 9 of CCR on the basis of CESTAT order in the case of Pharmalab Process Equipment Pvt.Ltd. Vs CCE [2009 (242) ELT 467 (Tri-Ahmd)]. Commissioner (Appeals) also relied upon the following case laws:-
a) CCE Vs Gwalior Chemicals Industries Ltd [2011 (274) ELT 97 (Tri-Del)]
b) CCE Vs Grasim Industries Ltd [2011 (24) STR 691 (Tri-Del)]
2. Shri Govind Jha (AR) appearing on behalf of the Revenue argued that CENVAT Credit has been taken by the Respondent on the strength of debit notes issued in the name of Mumbai HQ of the Respondent and that debit note is not the prescribed document for taking credit under Rule 9 of CCR and Rule 4A of the Service Tax Rules, 1994. It is also the case of the Revenue that HQ office of the Respondent was neither registered as ISD nor credit was distributed by Head Office of the Appellant to their Daman unit.
3. Shri Anand Nainawati (Advocate) appearing on behalf of the Respondent argued that CENVAT Credit was in fact taken on the basis of ISD certificates issued by their Mumbai office. Learned Advocate made the Bench go through Para 3(v) and 8 of OIA dt.31.12.2012 to argue that CENVAT Credit was taken on the basis of ISD invoices issued by their Head Office, which were valid documents. That Respondents Head Office has taken credit on the basis of Debit Notes which was a wrong nomenclature and the debit notes had all the essentials of an invoice. He relied upon the following case laws to argue that even the Head Office has taken CENVAT Credit properly which is passed on to the Respondent under a valid ISD invoice, under Rule 4A of the Service Tax Rules:-
a) Valco Industries Ltd Vs CCE, Chandigarh [2012 (286) ELT 54 (Tri-Del)]
b) Pharmalab Process Equipment Pvt.Ltd. Vs CCE Ahmedabad [2009 (242) ELT 467 (Tri-Ahmd)]
c) CCE Indore Vs Gwalior Chemicals Industries Ltd [2011 (274) ELT 97 (Tri-Del)]
d) Shree Cement Ltd Vs CCE Jaipur-II [2013 (29) STR 77 (Tri-Del)]
4. Heard both the sides and perused the case records. The issue involved in the present appeal filed by the Revenue is whether Respondent has taken CENVAT Credit on the basis of valid documents under Rule 9 of CCR and Rule 4A of the Service Tax Rules. It is the case of the Revenue that Respondent took CENVAT Credit on the Debit Notes of commission agents in the name of their HQ, which are not prescribed documents and also that Head office of the Respondent is neither registered as ISD nor credit was distributed by the Head Office to Respondents Daman unit. With respect to Debit notes being proper document respondent has relied upon several case laws. In the case of CCE Indore Vs Gwalior Chemicals Industries Ltd (supra) CESTAT Delhi made following observations while dismissing Revenues appeal:-
4.?The only point of dispute in this case is as to whether the respondent could take service tax credit on the basis of the documents called debit notes cum bills issued by the service providers for the service provided by them to the Respondent. From the records, it is also seen that the debit notes cum bills are not in the nature of supplementary invoices, but are of the nature of invoices and Assistant Commissioner in the order-in-original has given a clear finding that the debit note cum bill contain all the requisite information as per the provisions of Rule 9(1) of the Cenvat Credit Rules, 2004, that the service provider has also charged the service tax and has deposited the taxes to the exchequer and that the debit notes cum bills are in the name of the respondent. From the nature of these documents called debit notes cum bills in the Commissioner (Appeals)s order, it is clear that the same are in the nature of invoices as these documents not only contained the information about the name of the service provider, the nature of the service provided, but also the value of service and the service tax charged. In view of this, I am of the view that these documents have to be treated as invoices and it would not be correct to deny the Cenvat credit to the respondent just because these documents invoice are mentioned as debit notes cum bills. I find that same view has been expressed by the Tribunal in the case of Karur KCP Packaging Pvt. Ltd. v. CCE, Trichy (supra) and Pharmalab Process Equipments Pvt. Ltd. v. CCE, Ahmedabad (supra). 4.1 In view of the above case law and other case laws, relied upon by the Appellant, a Debit note could also belong to the category of Invoice where all the prescribed details are available. As per World Book Dictionary also, an invoice means a list of goods sent to a purchaser often showing such other information as price, amounts etc. Similarly, a Bill means a statement of money owned for work done or things supplied. Accordingly, a debit note having all the prescribed details could be an invoice or bill. It is not brought out by Revenue as to what are the standard elements of an Invoice or Bill or Challan which are lacking in the debit notes issued to Respondents Head Office. On the basis of above observations and the reported case laws, Revenues appeal does not survive.
4.2 Another point taken by the Revenue is that Head office of the Respondent is not registered as an ISD. However, the stand of the Revenue and the Adjudicating authority is not correct in view of Para 3(5) of the OIA dt.30.12.2012. Further, First Appellate Authority in Para 8 of the OIA dt.31.12.2012 has made following factual observations:-
8. In order to examine if all the particulars required to be contained in the duty paying documents are there in the debit notes, I perused the sample copies of debit notes and observe that the Registration Number of Service Tax assessee, amount of Service Tax, name of service, name and address of the service provider, name and address of service receiver, service charges etc, have been indicated clearly in the relevant debit notes. I also observe that in fact the credit has been taken by the appellants on the strength of ISD invoices issued by their Head office under Rule 4A. The Head office of the Appellants has availed the credit on the basis of debit notes and passed on the credit by issuing ISD invoices under Rule 4A to the Appellants. Sample ISD invoices and respective debit notes have been perused which reveal that the debit notes contained essential information as required under said rules and the Appellant has taken credit in their RG23 Part II account on the strength of ISD invoices. For example, credit of Rs.80,030/- has been availed on the strength of ISD Invoice No.02 dt.25.04.2010; credit of Rs.1,09,355/- has been availed on the strength of ISD invoice N.020, dt.25.01.2010 and credit of Rs.1,54,650/- taken on the basis of ISD invoice No.14, dt.27.10.2009. These sample ISD invoices contain all necessary particulars as required under Rule 4A of the said rules and hence are valid document for availing credit under Rule 9 of CCR. Thus, the allegation that the credit has been availed by the Appellants on the basis of debit notes/letters issued in the name of head office is not factually correct. I find that all the essential information required as per Rule 4A of Service Tax Rules, 1994 are contained in the said ISD invoices. Moreover, it is also observed that Appellants are having only one manufacturing unit. Hence, in view of above decisions, the credit taken against debit notes cannot be faulted with. 4.3 From the above factual matrix, Respondent has taken credit on the basis of ISD invoices issued by Respondents HQ and not on the basis of debit notes of the Sales Commission agents. As ISD invoices on the basis of which credit was taken are the prescribed documents, therefore, credit was correctly taken by the Respondent. Accordingly, there is no reason to interfere with the orders passed by the First Appellate Authority. Appeal filed by the Revenue is rejected.
(Dictated and pronounced in Court) (H.K. Thakur) Member (Technical) cbb 6