CA Bimal Jain

CA Bimal JainFacts:

India Housing (the Appellant), a service provider, took Cenvat credit on certain input services. The Department denied the Cenvat credit on the ground that the Appellant has taken Cenvat credit on the documents which are not the correct documents as per the Rule 9(2) of the Credit Rules. Few invoices were rejected on the ground that that Appellant was not registered at the time of issuance of invoices, few on the ground that the invoices are not in the name of Appellant etc.

Held:

The Hon’ble CESTAT, New Delhi, after following the decision of the Tribunal in the case of Imagination technologies India P. Ltd. [2011 (4) TMI 406 – CESTAT, MUMBAI], held that neither in the show cause notice nor in the impugned order, it has been disputed that the Appellant has not availed input service and has not paid Service tax. Hence, the Appellant is entitled to take Cenvat credit even though the Appellant was not registered at the time of availing the services.

Our Comments:

The Hon’ble High Court of Karnataka in the case of mPortal India Wireless Solutions P. Ltd. Vs. C.S.T., Bangalore [2012 (27) S.T.R. 134 (Kar.)], has held that the Credit Rules does not mandate registration with the Department for availing Cenvat credit and denial of benefit on the ground non-existent in law is unjustified. We are reproducing herewith relevant extract of the judgment for the ease of your reference:

“….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 said decision of the Hon’ble High Court was further followed/ referred in the following cases:

  • 3M India Ltd. Vs. C.C.E. & S.T., LTU, Bangalore [2013 (31) S.T.R. 110 (Tri. – Bang.)];
  • Commissioner of S.T., Bangalore Vs. Focus Infosys (India) Pvt. Ltd. [2013 (31) S.T.R. 553 (Tri. – Bang.)];
  • Kpit Cummins Infosystems Ltd. Vs. Commissioner of C. EX., Pune-I [2013 (32) S.T.R. 356 (Tri. – Mumbai)];
  • of S.T., Bangalore Vs. Aviva Global Services (Bang.) P. Ltd. [2014 (33) S.T.R. 270 (Tri. – Bang.)];
  • Business Process Outsourcing (I) Pvt. Ltd. Vs. C.C. & S.T., Bangalore [2014 (34) S.T.R. 364 (Tri. – Bang.)]

    (Author can be reached at Email: bimaljain@hotmail.com)

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