Case Law Details
M/s D.A. Stuart India Pvt Ltd Vs C.C.G.S.T (CESTAT Mumbai)
In the absence of a statutory provision which prescribes that registration is mandatory, the claim of the Appellant cannot be rejected and both the authorities below have committed an error in rejecting the same. In a very recent decision of the Tribunal in the matter of ABM Knowledge Ltd. Vs. Commissioner of Customs, Mumbai Appeal-III, a similar issue has been decided in favour of the assessee and it has been held that non-mentioning of registered premises is only a procedural lapse. At the cost of repetition, it is relevant to mention here that there is no dispute with respect to the receipt of input services, its use, the quantum of credit and period. It is settled a legal position that any beneficial provision should be interpreted liberally. There is a lapse but on whose part, whether on the part of the service provider or the appellant. Since it is merely procedural lapse due to which substantive benefit of Cenvat Credit cannot be denied to the Appellant, therefore, there is no need to go into this aspect. As the Appellant has rightly availed the cenvat credit, therefore, there is no question of imposition of penalty or interest and since I am allowing the appeal on this issue itself, therefore, I am not going into other aspects of the matter viz. Issue of extended period etc.
FULL TEXT OF THE CESTAT JUDGMENT
The present Appeal has been filed from the impugned order dated 05.04.2018 passed by the Commissioner (Appeals Thane), GST & Central Excise, Mumbai in Order-in-Appeal No. PVNS/345/Appeals Thane/ TR/ 2017-18.
2. The issue to be decided is whether the Appellant has rightly availed the Cenvat Credit amount of Rs.3,96,327/- on input services on the basis of the invoice issued at its unregistered address at Hyderabad, Andhra Pradesh from where no output service was provided and also which address was not registered as Input Service Distributor.
3. I have heard learned counsel for the Appellant and learned Authorised Representative for the Revenue and perused the records. The learned counsel submitted that factually the learned commissioner has erred in recording that M/s. DASIPL Hyderabad, unit of the appellant was effectually the recipient of service. He further submitted that since the service was rendered directly by the service provider to M/s. DASIPL, Bhiwandi unit i.e. the Appellant therefore its Hyderabad unit is not the recipient of service and the appellant i.e. Bhiwandi unit is the right person to avail Cenvat Credit of service tax paid on the said services. He also submitted that if the particulars relating to cenvat credit on input service are genuine, then credit cannot be denied merely because input service provider had mentioned incorrect address in the invoice. It is also the case of the Appellant that the service provider has made a specific declaration that the services covered by their invoices have been provided only to the Appellant’s manufacturing unit at Bhiwandi. He further submitted that there was no suppression of facts and all the details were mentioned in the ER-1 returns filed from time to time and therefore extended period cannot be invoked nor the appellant can be held liable for interest and penalty. The learned Authorised Representative reiterated the findings recorded in the impugned order and prayed for dismissal of the Appeals.
4. It is not disputed that the Cenvat Credit on input services are genuine. After seeing the records I am in agreement with the learned counsel that the Appellant was effectually the recipient of service and not its Hyderabad Unit as recorded by the learned commissioner in the impugned order. The service provider has inadvertently stated the Hyderabad unit address on the invoice in question but I have been informed that later on it was corrected by the service provider by putting the Bhiwandi unit address therein. The service provider has also issued a
certificate to that effect in favour of the appellant, which is reproduced as under:-
“TO WHOM SO EVER IT MAY CONCERN
This is to state and declare that we M/s 20 Cube Logistics Pvt Ltd located at Bhiwandi had provided the services of Warehousing to M/s D A Stuart India Private Ltd located at Bhiwandi but due to inadvertent oversight, the address of D A Stuart India Private Ltd Hyderabad was given which address was not changed in our system, though said services were rendered only for their Bhiwandi address.
Hence, to correct the said inadvertent error, we had corrected the said address on the original invoice issued and have placed our attestation as well and did not issue any fresh invoice which could be impermissible. Hence on the said basis of corrected invoice, the service receiver M/s D A Stuart India Private Ltd should be entitled to avail Cenvat credit on the basis of Invoice Nos. Given in the attached Annexure A and we also declare that the said service tax so collected from M/s D A Stuart India Private Ltd has been remitted to the Government and the said service tax paid has also been accounted in the ST 3 returns filed by us for the relevant period
Place: Bhiwandi
Date: 23.03.2016
For 20 Cube Logistics Pvt Ltd
Authorised Signatory”
From the above it is clear that the service have actually been provided to the Appellant but inadvertently the address of Hyderabad Unit was mentioned on the invoices. Revenue has not disputed that the service in question is an input service. It is also not the case of Revenue that no service tax has been paid. Now the issue is whether the mentioning of registered premises on the invoice is mandatory in order to claim cenvat credit.
5. This issue is no more res integra. In the matter of mPortal India Wireless Solutions (P) Ltd. Vs Commissioner; 2011-TIOL-928-HC-KAR-ST, a similar question arises for consideration of the Hon’ble High Court of Karnataka and the Hon’ble High Court while answering the question in favour of assessee, held as under:-
“7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.”
The aforementioned decision of the Hon’ble High Court has been followed by the Tribunal from time to time. The rejection of refund claim on the ground of non-registration had come up before a co-ordinate Bench of the Tribunal in the matter of Commr. of S.T., Chennai vs. Scioinspire Consulting Services (I) P. Ltd.; 2017 (47) S.T.R. 188 (Tri.Chennai) in which the Tribunal while relying upon the decision of the Hon’ble Karnataka High Court in the matter of mPortal India Wireless Solutions (P) Ltd. (supra) answered the issue in favour of the assessee. Insofar as requirement of registration with the department is concerned, learned Authorised Representative failed to point out any provision in the Cenvat Credit Rules which prescribes that registration of premises is a condition precedent for claiming Cenvat credit and that in its absence the claim is to be rejected. In the absence of a statutory provision which prescribes that registration is mandatory, the claim of the Appellant cannot be rejected and both the authorities below have committed an error in rejecting the same. In a very recent decision of the Tribunal in the matter of ABM Knowledge Ltd. Vs. Commissioner of Customs, Mumbai Appeal-III; 2019-TIOL-914-CESTAT-MUM, similar issue has been decided in favour of the assessee and it has been held that non-mentioning of registered premises is only a procedural lapse. At the cost of repetition it is relevant to mention here that there is no dispute with respect to the receipt of input services, its use, quantum of credit and period. It is settled legal position that any beneficial provision should be interpreted liberally. There is a lapse but on whose part, whether on the part of the service provider or the appellant. Since it is merely procedural lapse due to which substantive benefit of Cenvat Credit cannot be denied to the Appellant therefore there is no need to go into this aspect. As the Appellant has rightly availed the cenvat credit therefore there is no question of imposition of penalty or interest and since I am allowing the appeal on this issue itself therefore I am not going into other aspects of the matter viz. Issue of extended period etc.
6. In view of the above, the order passed by the ld. Commissioner (Appeals) is set aside and the Appeal filed by the Appellant is allowed with consequential relief, if any.
(Order pronounced in the open Court on 09.05.2019)
