Technip India Ltd. Versus Commissioner of Central Goods & Service Tax, Noida
Service Tax
2019 (2) TMI 1102 – CESTAT ALLAHABAD – TMI
CESTAT ALLAHABAD – AT
Dated:- 11-12-2018
MISC Application No. ST/MISC/70255/2018, APPEAL No. ST/70737/2017-CU[DB] – ST/A/72840/2018-CU[DB]
Service Tax
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical)
Shri Tarun Jain (Advocate)) for Appellant
Shri Shiv Pratap Singh (Deputy Commissioner) AR for Respondent
ORDER
Per: Archana Wadhwa
1. The present appeal arises on account of amalgamation of three entities, namely, (1) Technip India Limited (earlier registered for Service Tax in Channai), (2) Technip ENC India Limited (earlier registered for Service Tax in Mumbai) and (3) Technip KT India Limited, Delhi (registered with Service Tax in Noida). All the three companies had a common holding company which decided to amalgamate these companies. The scheme of amalgamation was presented and obtained the
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14 the Service Tax Authorities in Mumbai were informed. In these letters, it was duly pointed out by the Appellant that the scheme has been sanctioned by the Hon'ble High Court and in terms of the scheme the Cenvat Credit available with the entity registered at Chennai and Mumbai, stood transferred to the entity registered at Noida with effect from 21.04.2014.
4. In this background, the Appellant took the credit available with the Chennai and Mumbai entities and this credit was duly shown in statutory returns pertaining to the period April, 2014 filed by the appellant with the Noida Service Tax Department. Thereafter, the appellant also applied for the centralized registration of these units which was duly granted to the appellant on 08.10.2014. The process was also initiated by the appellant for surrender of registration with Chennai and Mumbai Service Tax Authorities which were also duly surrendered.
5. Thereafter, an audit was undertaken by the Service Tax Department Noida dated 0
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sought to be denied by the Department.
7. In response to the notice the appellant submitted that (a) in terms of settled law there was no requirement to obtain permissions from the Department for transfer of credit in terms of Rule 10, (b) that in any case the appellant itself had intimated the Department regarding the transfer of credit in terms of the scheme approved by the Hon'ble High Courts, (c) in any case the credit transfer was not subject to compliance with the sub Rule 10 (3) in view of the fact that under Rule 10 (3) the requirement was only to account for credit on inputs or capital goods.
8. In the aforesaid background, the impugned order has been passed. It is pertinent to point out that the leanred Commissioner has accepted the submission of the appellant that no permission is required by the appellant for transfer of credit in terms of Rule 10 of the Cenvat Credit Rules. Nonetheless, the Impugned Order has been passed for the following reasons;
(i) Learned Commissio
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re, the learned Commissioner has found the Appellant guilty of suppression to confirm the entire demand with equal penalty and also against interest while denying the Department transfer of the entire Credit.
Hence the present appeal.
9. On hearing both the sides duly represent by Shri Tarun Jain, Advocate appearing on behalf of the appellant and Shri Shiv Pratap Singh, Deputy Commissioner AR appearing for the Revenue we find that the show cause notice proposed to deny credit on the ground that no prior permission stands taken by the appellant. However, the said issue stands accepted by the Adjudicating Authority and as such it was not open to the Revenue to deny the credit on further allegations. The legal issue that Adjudicating Authority cannot go beyond the show cause notice is well settled by catena of judgments. Reference can be made to the Hon'ble Allahabad High Court's decision in the case of Sarika Jain vs. Commissioner of Income Tax (2018) 407 ITR 254 (All.) wherein it was
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