ST : As per proviso to rule 9(2) of CENVAT Credit Rules, 2004, name of service recipient on documents is not an essential requirement for availment of credit, provided services are received and accounted for as per law
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[2013] 33 taxmann.com 410 (Ahmedabad - CESTAT)
CESTAT, AHMEDABAD BENCH
Akshar Courier Service
v.
Commissioner of Central Excise, Vadodara - I*
B.S.V. MURTHY, TECHNICAL MEMBER
ORDER NO. A/10198/WZB/AHD/2013
APPEAL NO. ST/110 OF 2011
APPEAL NO. ST/110 OF 2011
JANUARY 11, 2013
Rule 9 of the Cenvat Credit Rules, 2004 - CENVAT Credit - Documents on which credit may be taken - Period from October, 2003 to September, 2006 - Department denied credit of input services taken on basis of invoices in name of Akshar Enterprises instead of assessee's name viz. Akshar Courier Service - Assessee argued that Akshar Enterprises was a dummy unit created for marketing purposes to show to consumers that said two were separate units and thereby, avail more business - It was argued that services were availed and payment was made by assessee only - HELD : As per proviso to rule 9(2) of CENVAT Credit Rules, 2004, name of service recipient on documents is not an essential requirement for availment of credit - Lower authorities had failed to consider applicability of said provision, hence, matter was remanded back to consider allowability of Cenvat credit in light of provisions of rule 9(2) of CENVAT Credit Rules, 2004 [Paras 4 and 5] [In favour of assessee]
D.K. Shah for the Appellant. S.K. Mall for the Respondent.
ORDER
1. This appeal is against the denial of Cenvat Credit of service tax paid on input services amounting to Rs. 2,04,498/- for the period from October, 2003 to September, 2006 with interest. Penalty equal to service tax also was imposed.
2. Heard both sides. In this case, credit has been denied only on the ground that invoices were in the name of Akshar Enterprises and not in the name of the appellant.
3. The ld. Advocate for the appellant submits that Akshar enterprise was a dummy unit; it was created because some of the service providers would not like to deal with another courier service and Akshar Courier was performing service of courier and therefore, Akshar Enterprise was created to show that services were done by Akshar Enterprise and not by Akshar Courier. Even the First Flight Couriers have ultimately certified that even though service receiver according to the invoices was Akshar Enterprise, payment for services was received from Akshar Courier Service only; it would show that Akshar Enterprise was created only as a dummy receiver of consignments and in reality appellant receives services. Under these circumstances he submits that credit has to be allowed. He further submits that according to proviso to sub-rule (2) of Rule 9(2) of Cenvat Credit Rules, 2004, name of the service receiver in the invoice is not an essential requirement. Assistant Commissioner/Deputy Commissioner has power to allow the benefit of cenvat credit of tax paid, if he is satisfied that the service covered by documents has been received and accounted in the books of account of the receiver. He submits that both the lower authorities have not considered these provisions while rejecting the claim of credit, holding that credit has been wrongly availed, and imposing penalty.
4. After considering the submissions as discussed above, I am satisfied that the original adjudicating authority before confirming the demand of service tax with interest and imposing penalty, should have considered whether this is a fit case for allowing the benefit of cenvat credit for tax paid or not.
5. In view of the above discussions, I consider that the matter is required, to be remanded and while doing so, I take note of the fact that name of the service provider is not an essential requirement. In this case, according to the ld. Counsel, the only defect is that the invoice is not in the name of the receiver. In these circumstances, appeal is remanded to the original adjudicating authority to decide the issue afresh, after considering invocation of proviso to sub-rule (2) of Rule 9(2) of Cenvat Credit Rules, 2004 and other submissions made by learned Counsel, according to law.
VINEET*In favour of assessee.
Regards
Prarthana Jalan
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