Customs, Excise and Service Tax Appellate Tribunal, Mumbai: In an appeal filed against the impugned order, whereby the appellant’s CENVAT credit was disallowed, the bench of Dr. Suvendu Kumar Pati, Member (Judicial) and Anil G. Shakkarwar, Member (Technical) opined that the registration of a premises was not a condition precedent for availing a CENVAT credit. The Tribunal stated that there was no allegation in the show cause notice that the services associated with the invoices in question were not received by the appellant nor there were any allegations that the input services did not suffer service tax. Therefore, the appellant was eligible for availing CENVAT credit of Rs. 1,19,19,010 and accordingly set aside the impugned order.
Background
In the present case, appellant was engaged in selling of software products developed by Microsoft, which came in the form of E-licences. Appellant had registered with service tax for their business premises at Gandhi Nagar, Nagpur and had been availing the facility of CENVAT credit. During the scrutiny of records of the appellant for the period from 2010-11 to 2013-14, it was observed that the invoices of input services were having addresses of the recipient as Gandhi Nagar, Nagpur as well as Dharampeth, Nagpur and Mahoba Bazar, Behind Picaddly Hotel, Raipur.
It appeared to Revenue that the input services where the address was, other than that for which registration was obtained, were not admissible for availing CENVAT credit as per proviso to Rule 9(2) of CENVAT Credit Rules, 2004 (‘2004 Rules’). Therefore, a show cause notice dated 23-10-2015 was issued to the appellant with a proposal to disallow CENVAT credit of Rs. 1,19,19,010 under proviso Section 73(1) of Finance Act, 1994 read with Rule 14 of 2004 Rules.
The show cause notice was adjudicated whereby the original authority held that the invoices which were received with addresses other than the address of registered premises were the one which could amount to not having received such services by the appellant. Therefore, the CENVAT credit of Rs.1,19,19,010 was disallowed and equal penalty was imposed and ordered the appellant to pay interest. Thus, the appellant filed the present appeal.
Appellant contended that the registration of premises was not mandated as a condition precedent for availing CENVAT credit and there was no provision in 2004 Rules which imposes such a restriction. Appellant further submitted that at para 5 of the said show cause notice, it was stated that the invoices contained the genuine addresses belonging to the appellant. The show cause notice had clearly stated that all the addresses which were recorded on the input invoices were genuine addresses of the appellant and that the finding of the original authority that the services for which invoices were issued at addresses other than the registered address of the appellant were not received by the appellant was contrary to the contention stated in the show cause notice.
Analysis, Law, and Decision
The Tribunal noted that para 5 of the show cause notice which clearly stated that all the aforesaid mentioned three addresses were genuine addresses belonging to the appellant. Further, the services were not received by the appellant regarding which invoices were issued to the appellant’s other two addresses, other than the address for which service tax registration had been taken, was contrary to the contention stated by Revenue in the show cause notice. Therefore, the same was not sustainable in law.
The Tribunal stated that the registration of a premises was not a condition precedent for availing a CENVAT credit. Further, there was no allegation in the show cause notice that the services associated with the invoices in question were not received by the appellant nor there were any allegations that the input services did not suffer service tax. Therefore, the appellant was eligible for availing CENVAT credit of Rs. 1,19,19,010 and accordingly set aside the impugned order.
[Shreyas Infotech v. Commr. (CGST), 2024 SCC OnLine CESTAT 734, decided on 25-07-2024]
Advocates who appeared in this case:
For the Appellant: Mayur Shroff, Advocate;
For the Respondent: S.B.P. Sinha, Superintendent, Authorised Representative.
