Custom, Excise & Service Tax Tribunal
Hitachi Ltd vs -Mumbai East on 19 July, 2022
1
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH - COURT NO. I
Service Tax Misc. Application No. 85303 of 2022
(on behalf of Appellant)
In
Service Tax Appeal No. 89084 of 2018
(Arising out of Order-in-Appeal No. MUM-DGPM-WRU/APP-744/17-
18 dated 21.03.2018 passed by the Principal Additional Director
General, DGPM, WRU, Mumbai)
M/s Hitachi Ltd. .... Appellant
1210, 12th Floor, Learned Counsel Wing,
One BKC, BKC, Bandra (E), Mumbai -400051
Versus
Principal Additional Director General, .... Respondent
DGPM, WRU, MUMBAI 4th Floor, Transport House, Poona Street, Masjid (E), Mumbai - 400009 Appearance:
Shri Keval Shah, C.A. for the Appellant Shri Vinod Kumar, Auth. Representative for the Respondent CORAM:
HON'BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) FINAL ORDER NO. A/85647 / 2022 Date of Hearing: 19.07.2022 Date of Decision: 19.07.2022 Per: S.K. MOHANTY This appeal is directed against the impugned order dated 21.03.2018 passed by the Principal Additional Director General, DGPM, WRU, Mumbai.
2. Brief facts of the case are that the appellant herein is engaged in providing various taxable services defined under 2 the Finance Act, 1994. The appellant availed CENVAT Credit of Service Tax paid on the taxable services received by them. In this case, the audit wing of the Department had raised the objection that availment of CENVAT Credit on the basis of debit note dated 21.06.2004 issued by M/s. Voltas Ltd. is not a prescribed document in terms of Rule 4A(1) of the Service Tax Rules, 1994 read with Rule 9 of the CENVAT Credit Rules, 2004. On the basis of such audit objection, the Department initiated show-cause proceedings against the appellant, alleging that the credit availed on the basis of debit note should not be considered as prescribed document as per the cenvat statute and as such, the credit so availed is irregular and liable to be reversed by the appellant. The matter arising out of the show-cause notice dated 03.08.2016 was adjudicated vide Order-in-Original dated 30.11.2016, wherein the learned original authority had dropped the proceedings initiated against the appellant. Being dissatisfied with such original order, the Department had preferred appeal before the ld Commissioner (Appeals), which was disposed off vide Order-in-Appeal dated 21.03.2018 (for short, referred to as "the impugned order") by allowing the appeal in favour of Revenue. The ld. Commissioner (Appeals) has observed that the appellant is not a service receiver inasmuch as no services were provided by M/s Voltas Ltd. to them. Further, he has also held that the debit note cannot be considered as valid document in terms of the Service Tax statute. On the basis of such observations, he has denied the CENVAT Credit amounting to Rs.20,88,840/- in terms of Rule 14 ibid read 3 with Section 73(1) of the Finance Act, 1994. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal.
3. The appellant also filed an application, enclosing there with the revised debit note for consideration by the Tribunal.
4. Heard both sides and examined the case records.
5. On perusal of the case records, I find that the show- cause notice issued to the appellant by the Department had only alleged that debit note issued by M/s Voltas Ltd. for providing the services of de-scoping of contract and towards overhead cost is not a prescribed document as per Rule 4A(1) ibid read with Rule 9 ibid. However, on examination of the impugned order, I find that provision of taxable service was not the subject matter of dispute, which has been considered in the impugned order. Thus, it is evident that the impugned order has travelled beyond the scope of the show-cause notice and on this ground alone, the impugned order is liable to be set aside.
6. With regards to the issue regarding availment of CENVAT Credit on the basis of debit note, I find that the Hon'ble Rajasthan High Court in the case of Commissioner of Central Excise, Jaipur Vs. Bharti Hexacom Ltd. reported in 2018 (12) GSTL 123 (Raj) has held that availment of CENVAT Credit on the debit note cannot be denied to the appellant. Thus, in view 4 of the settled position of law regarding consideration of debit note as a prescribed document for the purpose of taking CENVAT Credit, I am of the view that the ground taken in the impugned order does not stand judicial scrutiny. Further, on perusal of the amended debit note, I find that the said document has contained the information with regard to the Service Tax number and other particulars as prescribed in the statute.
7. Therefore, by setting aside the impugned order, the appeal is allowed in favour of the appellant. Miscellaneous application stands disposed off.
(Dictated and pronounced in open court) (S.K. Mohanty) Member (Judicial) Sinha