Custom, Excise & Service Tax Tribunal
M/S Mittal Pigments Pvt. Ltd vs Cce,Jaipur-I on 29 November, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Appeal No. E/3756/2010-SM(BR)
[Arising out of Order-In-Appeal No. 389(DKV) CE/JPR-I/2010 dated 23.08.2010 issued by CCE, Jaipur-I]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
NO
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s Mittal Pigments Pvt. Ltd. Appellant
Vs.
CCE,Jaipur-I Respondents
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri. Vijay Kumar, Adv. for the Appellant Shri. Rakesh Kumar Mathur,AR for the Respondent Date of Hearing: 29.11.2012 Date of decision:
final ORDER NO . 55204 dated 16/01/2013 Per Ms. Archana Wadhwa:
As per facts on record the appellant is engaged in the manufacture of Lead Oxide, Metallic Stearates, Zinc Oxide etc. they purchased a consignment of inputs and raw materials on high Sea Sales basis. The bill of entry was filed by them and the goods were cleared by availing the services of CHA and various other agencies. As the invoices raised by the services providers were either in the name of CHA, or the original importer a/c appellant. Even though the said amounts were reimbursed by the appellant by reflecting the same in their accounts revenue sought to deny the credit. Accordingly show cause notice was issued to appellant alleging as under:-
that on scrutiny of documents evidencing payment of service tax relating to input services submitted by the appellant, it came to notice that the appellant has availed Cenvat Credit on the strength of debit notes as shown in Annexure A to the show cause notice. Since the debit notes are not the proper documents for availing Cenvat Credit in terms of rule 9(1) of Cenvat Credit Rules, 2004 as such availment of Cenvat Credit on the basis of debit notes is not legally correct. Moreover, some bills do not have mention of service tax registration of the service providers, some bills do not have reference of separate service tax amount, some bills are not issued in the appellants name. The documents issued in the name of another firms are not the proper documents for availing of CENVAT credit. The service providers should issue bill in the name of appellant if the service recipient is the appellant and not the other firms. Moreover, some invoices do not have the reference of name of the service provided. In some cases the appellant have availed CENVAT credit on the strength of invoices issued in the name of another person A/C M/s Mittal Pigments Pvt. Ltd. Which is also not a valid document for the purpose of availment of CENVAT credit in terms of Rule 9(1) of CENVAT Credit Rules, 2004. Apart from this, some invoices also do not have description and classification of the services. The details of discrepancies narrated above has been shown against the respective serial number of the Annexure- A to the Show Cause Notice. Further, that these invoices have been issued in contravention of the provisions of Rule 9(2) of the CENVAT Credit Rules, 2004 read with Rule 4A of the Service Tax Rules, 1994.
2. The original adjudicating authority confirmed the demand as proposed in the notice and also imposed penalty. On appeal against the said order, Commissioner (Appeals) allowed partial relief and denied the credit of Rs. 2,98,177/- along with confirmation of interest and imposition of penalty of Rs. 2,000. The said denial was on the ground that service tax registration No. is not mentioned in invoices/bills and the documents are not in the name of the appellant.
3. The appellant have submitted the following pleas.
(1) Facts not disputed by A.C. or CCE(A) at any stage:-
(i) The Appellant has purchased the goods on high Sea Sales basis.
(ii) The expenses incurred and Service Tax paid are in connection with the impugned goods.
(iii) The Appellant had borne the expenses for the services availed in connection with the import and service tax has been borne by the Appellant.
(iv) Service Tax was paid on various services used in clearance of input goods;
(v) input goods were brought to the Partys factory;
(vi) Input goods were used for the purpose of manufacture of dutiable final product.
4. Arguing further, they have submitted that all the invoices raised by the services providers are in relation to clearing and forwarding of the goods imported by the original importers and purchased by the appellant on high Sea Sale basis. They filed the bill of Entry in their name and cleared the goods and used them in their factory for manufacture of dutiable final product. In such cases, the original documents of service providers would remain in the name of the original importers who endorsed these documents in the name of the Appellant. In as much as the appellant has made payment of all the invoices and Bills, they are entitled to claim the credit of service tax paid on various services used in clearance of input goods as the same are cenvatable input services. It is their submission that all the invoices contain all the particulars required under Rule 4A of the Service Tax Rules, 1994 and Rule 9(5) of the Cenvat Credit Rules, 2004. As the payments stand made by the appellant and the fact that service tax paid can be corelated with the bill of entry, there is no reason to deny the credit in respect of such services as all the document has been received and accounted for in their accounts. They also relied upon the following decision.
1. UNION OF INDIA v.MARMAGOA STEEL LTD.[2008 (229)E.L.T. 481 (S.C.)]
2. VIMAL ENTERPRISE v.v. UNION OF INDIA [2006 (195)E.L.T. 267 (Guj.)]
3. BANDO INDIA (P) LTD. v.COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2010(262)E.L.T. 1103 (Tri. Del.)]
4. COMMISSIONER OF CENTRAL EXCISE, VAPI v. JINDAL PHOTO LTD. [2009 (240) E.L.T. 728 (Tri.-Ahmd.)]
5. SECURE METERS LTD. v. COMMISSIONER OF C. EX., JAIPUR-II [2010 (18) S.T.R. 490 (Tri.- Del.)]
6. XEROX MODICORP LTD. v. COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2005(192) E.L.T.878 (Tri.-Del.)]
5. Learned Advocate also relied upon the Tribunal decision in their own case, being final vide order no. 1254/2012-SM(BR) dated 29.08.12 laying down that the appellant shall file an affidavit to the effect that the goods involved in High Sea Sales followed by Bill of Entry in the name of the appellant shall not be subjected to repeated claim of Cenvat credit by different hands.
6. After hearing learned DR, who reiterated the reasoning of the authorities below, I find that the credit stands denied to the appellant on the ground that the document are not in their name. However, it does not stands examined by the lower authorities whether such services were utilized by the appellant for clearance of imported goods and whether such document has been endorsed in their names. However, I am of the view that the matter need to be remanded to original adjudicating authority for fresh decision, with directions to examine document and in the light of the law declared in the precedent decision (supra). If the services stand utilized in relation to clearance of goods purchased by the appellant on High Sea Sale basis and if appellant had made payment for the same, the credit would be available to the appellant.
7. However, learned Advocate submits for setting aside the impugned order and allowing the appeal by following the earlier decision of the Hon'ble member judicial, in their own case. For better appreciation I reproduce the earlier order:-
Both sides agree that Cenvat credit should be allowed subject to precautionary measure for Revenue. The appellant shall file an affidavit to the effect that the goods involved in High Sea Sales followed by Bill of Entry in the name of the appellant shall not be subjected to repeated claim of Cenvat Credit by different hands i.e. one in the hands of appellant and other in the hands of others making abuse of those documents. The appellant shall file affidavit before the Adjudication Authority annexing respective bills of entry and also the list of parties from whom the goods were purchased in High Sea Sales and those documents to form an integral part of affidavit duly attested by the authority before whom the affidavit is sworn. If such an affidavit is filed within one month of receipt of this order, the authority shall drop the demand. Appeal is allowed only in this term.
8. As a seen from above the appeal stands allowed with direction to the appellant to file affidavit that the credit shall not be subjected to repeated claim in different hands i.e. one in the hands of the appellant and other in the hands of others making abuse of those documents. In my view an assessee can file affidavit for himself and no affidavit can be filed on behalf of the other persons, swearing that the other person will not claim the credit on the basis of the said documents. Otherwise also, I find that the disputed issue is not clear from the above order and no reasons stand given. As such, I find myself unable to follow the above order and to allow the appeal on the short ground of filing of affidavit by the appellant on behalf of others.
9. The issue is required to be examined on merits and for the said reason the matter is being remanded.
10. Appeal is thus allowed by way of remand.
(Pronounced in the open Court on) (Archana Wadhwa) Member (Judicial) Jyoti* ??
??
??
??
7