Custom, Excise & Service Tax Tribunal
M/S.Hindustan Coca Cola Beverages Pvt. ... vs C.C.E., Jaipur on 18 August, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT IV
Excise Appeal No.E/50600/2014-EX [SM]
[Arising out of Order-in-Appeal No. 129(VC)CE/JPR-I/2013 dated 29.10.2013 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Jaipur]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1
Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s.Hindustan Coca Cola Beverages Pvt. Ltd. Appellant
Vs.
C.C.E., Jaipur Respondent
Present for the Appellant : Shri.Bimal Jain, C.A.
Present for the Respondent: Smt.Ranjana Jha, D.R.
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 18/08/2015
FINAL ORDER NO. 54103/2016
PER: S.K. MOHANTY
The brief facts of the case are that the appellant is a manufacturer of aerated water/mineral water falling under Chapter 22 of the Central Excise Act, 1985. The appellant avails cenvat credit of Central Excise duty and service tax paid on inputs, capital goods and input services, used in or in relation to the manufacture of the final products. The appellant had taken cenvat credit of Rs.10,74,484/- on the service tax paid on manpower recruitment service on 21.05.2009, which was not charged by the service provider in its invoice issued initially, but was claimed through supplementary invoice, issued subsequently. Taking of such cenvat credit was objected to by the Service Tax Department on the ground that supplementary invoices are not eligible document for taking cenvat credit as prescribed under Rule 9 of the Cenvat Credit Rules, 2004. Show cause notice issued in this regard culminated in the adjudication dated 19.01.2012, wherein the cenvat credit was disallowed and recovery was ordered alongwith interest, and penalty of Rs.2,000/- was imposed on the appellant. In appeal, the ld. Commissioner (Appeals) vide the impugned order dated 29.10.2013 has upheld the adjudged demand. Hence, the present appeal is before this Tribunal.
2. Shri Vimal Jain, the ld. Consultant appearing for the appellant submits that Cenvat Credit Rules do not prohibit availment of cenvat credit of service tax paid on the basis of supplementary invoices issued by the service provider including invoices issued, showing payment of tax on account of fraud or collusion etc., prior to 01.04.2011. To support his above stand, the ld. Consultant has relied on the decision of this Tribunal in the case of Delphi Automotive System Pvt. Ltd. vs. Commissioner of Central Excise, Noida reported in 2013-TIOL 1793-CESTAT-Del.
3. On the other hand, Mrs. Ranjana Jha, ld. D.R. appearing for the respondent reiterated the findings recorded in the impugned order.
4. I have heard the ld. Counsel for both sides and perused the records.
5. I find that the ld. Commissioner (Appeals) in the impugned order has denied the cenvat benefit to the appellant holding that during the disputed period, supplementary invoice issued by the provider of input service was not a prescribed document under the Cenvat Scheme, and thus, no credit was available on the basis of supplementary invoices issued prior to 01.04.2011. It has further been observed in the impugned order that the appellant had contravened the provisions of Rule 4 (7) of the Cenvat Credit Rules by taking credit of Rs.6,13,912/- before making payment to the service provider.
6. I find that the issue regarding eligibility for taking of cenvat credit on the basis of supplementary invoice issued by the service provider on 15.05.2009 is covered by the decision of this Tribunal in the case of Delphi Automotive System Pvt. Ltd. (supra). The relevant paragraph of the said decision is extracted herein below:-
8. Coming to the first question as to whether during the period of dispute, supplementary invoice could be treated as a valid document, I find that a Division Bench of this Tribunal in the cased of EBG India Pvt. Ltd. vs. CCE, Nasik (supra) has held that supplementary invoice evidencing payment of additional duty amount is not to be treated on a different footing vis-`-vis the original invoice evidencing original payment of duty as both these documents were issued under the same provisions of law. Moreover in the Service Tax Rules, 1994 there is provision only for issue of invoice by the service provider or input service distributor and as such, the Service Tax Rules also do not mention the issue of supplementary invoices when additional service tax is required to be paid due to any reason. In view of this, the term invoice mentioned in Clause (f) and (g) of Rule 9 (1) of Cenvat Credit Rules, 2004 has to be treated including supplementary invoice as during the period of dispute, with regard to service tax payment , the Rule 9 (1) did not make any distinction between invoice and supplementary invoice.
7. With regard to observation of the ld. Commissioner (Appeals) that the provisions of Rule 4 (7) of the Cenvat Credit Rules has been contravened, by taking credit before making payment to the service provider, I find from the available records that though the said amount was taken by the appellant, the same was regularised upon deposit of the interest attributable to such irregular availment of credit. Since the appellant has compensated the government by paying interest on account of early availment of cenvat credit before making payment of service tax to the service provider, the matter got regularised and there is no reason for denial of such credit to the appellant. In view of above, I do not find any merits in the impugned order, and thus, the same is set aside and the appeal is allowed in favour of the appellant.
[Operative portion pronounced in the Open Court] (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
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