Custom, Excise & Service Tax Tribunal
M/S. Dhananjay Industrial Engineer ... vs Commissioner Of Central Excise, ... on 16 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No.E/1317/11 (Arising out of Order-in-Appeal No. US/24/M-II/2011 dt. 27.06.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II ) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No
the 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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
======================================================
M/s. Dhananjay Industrial Engineer Pvt. Ltd.
:
Appellant
VS
Commissioner of Central Excise, Mumbai-II
:
Respondent
Appearance
Shri Sunil Agarwal, Advocate for Appellant
Shri V.K. Shastri, Asstt. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 16/12/2016
Date of decision: 16/12/2016
ORDER NO.
Per : Ramesh Nair
The appellant has availed the cenvat credit of service tax paid on the renting of immoveable property which they have taken on rent from individual. The said premises was used for carrying out the part of their manufacturing activities. The show cause notice proposed to deny the cenvat credit on the ground that the documents on which the credit was taken, are debit notes, vouchers and statements which are not the valid documents for taking cenvat credit under the provisions of Rule 9 of Cenvat Credit Rules, 2004. The adjudicating authority has disallowed the credit on the ground that the premises are not registered in the Central Excise registration of the appellant therefore the adjudicating authority denied the credit not only on the ground of validity of the documents raised in the show cause notice but also on the ground that the premises taken on rent is not incorporated in the factory premises in their registration certificate. Being aggrieved by the order of the adjudicating authority the appellant filed appeal before the Commissioner (Appeals), who concurring with the findings of the original authority upheld the order-in-original and rejected the appeal. Therefore the appellant is before me.
2. Shri Sunil Agarwal, Ld. Counsel for the appellant submits that the only allegation in the show cause notice is that the appellant has availed credit on the strength of debit notes, vouchers and statements of the service provider which is not permissible in terms of Rule 9 of Cenvat Credit Rules, 2004. In this regard, he submits that the service tax paying documents clearly shows that these are invoices issued by the owner of the premises towards the rent and service tax paid thereon. These documents are given all the information such as serial number, name, address and registration number of the service provider name, address of the service receiver. He further submits that in respect of all the three lessors there are lease agreement with the appellant therefore all the details of terms and conditions are appearing in the said lease agreement, therefore it is not correct to allege that the credit was taken on invalid documents. He further submits that the adjudicating authority has traveled beyond the scope of show cause notice in as much as he has denied the cenvat credit also on the ground that the premises taken on rent has not been incorporated as the registered premisesin the registration certificate. This allegation was not raised in the show cause notice and appellant was not put to notice to reply the said allegation therefore his ground is not sustainable. He placed reliance on the following judgments:
(i) Commissioner of Central Excise Vs. Gas Authority of India Ltd.
2008 (232) E.L.T. 7 (S.C.)
(ii) Bombay Forgings Ltd. Vs. Commissioner of C. Ex., & Cus., Aurangabad 2015 (329) E.L.T. 938 (Tri.-Mumbai)
(iii) Commissioner Vs. Reliance Ports and Terminals Ltd.
2016 (334) E.L.T. 630 (Guj.) He further submits that major part of the demand is time bar as no suppression of fact is involving on the part of the appellant. This issue of limitation has not been considered by the Commissioner (Appeals).
3. Shri V.K. Shastri, Ld. Assistant Commissioner (A.R.) appearing on behalf of the revenue reiterates the findings of the impugned order. He further submits that from the documents which were claimed by the appellant are not actually invoices but it is the form of letterhead and not pre-printed invoices therefore they were not entitled for the credit.
4. I have carefully considered the submissions made by both the sides. From the adjudication order, I find that the adjudicating authority has given reasoning for denial of the credit that the appellant has not incorporated the premises in the registration certificate. On going through the show cause notice, it is clear that this allegation was not made in show cause notice. Therefore the adjudicating authority was not supposed to go into any other aspect, which was not raised in the show cause notice therefore the said ground taken in the adjudication order is set aside, on the premise that the adjudicating authority was not permitted to travel beyond the scope of show cause notice. As regard the issue raised in the show cause notice that the documents on the strength of which the credit availed are not the prescribed invoice, but it is debit notes, vouchers or statements, on careful perusal of these documents, I find that though it is not pre-printed commercial invoice but it is either in letterhead on the lesser of the premise or in the printed form of the invoice is in terms of Rule 9 of the Cenvat Credit Rule , the only requirement is that certain information should be incorporated in the documents. Even though it is called by name invoice, if any document issued by the service provider, which contained all the information as required under Rule 4 of the Service Tax Rules, credit should be allowed. From the documents, I observe that all such informations are given in the so called invoices therefore credit on such invoices cannot be denied. Further, I find that no any document either is in the nature of debit notes, vouchers or statements therefore the basic allegation itself is not correct. I am of the view that, even if it is debit notes in various judgments of this Tribunal held that the credit on debit notes are admissible so long it contains all the information required in terms of Rule 4 of Service Tax Rules. As per my above discussion, the impugned order is set aside and appeal is allowed with consequential relief.
(Pronounced & Dictated in court) (Ramesh Nair) Member (Judicial) SM.
5Appeal No.E/1317/11