NUVOCO VISTAS CORPORATION LIMITED Versus Commissioner of CGST & Central Excise, Kolkata
Service Tax
2018 (7) TMI 1600 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 6-7-2018
ST\/75541\/2018 – FO\/A\/76416\/2018
Service Tax
SHRI P. K. CHOUDHARY, JUDICIAL MEMBER
\nShri Kaushik Dasgupta, Assistant Vice President (Indirect Taxation) for the Appellant (s)
\nShri H. S. Abedin, A.C. (AR) for the Respondent
\nORDER
\nPer Shri P. K. Choudhary
\nBriefly stated the facts of the case are that the appellant (formerly known as Lafarge India Limited) is engaged in the manufacture of cement, classifiable under chapter 25 of the First Schedule to Central Excise Tariff Act, 1985. The head office of the appellant is situated in Mumbai, whereas the Operational Accounting Office of the appellant is situated in Kolkata. During the audit and scrutiny of the records and returns filed by the appellant for the periods 2011-12 and 2012-13, the department observed that the appellant had taken<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ad with Rule 15(1) of the Cenvat Credit Rules, 2004. On appeal, the Commissioner (Appeals) upheld the adjudication order. Hence, the present appeal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n f raising bills in favour of remote manufacturing\/ service units of firms who had their corporate offices in big cities from where all the financial transactions were carried out. Since CENVAT Credit is absolutely based on documents, credit on bills \/ invoices issued in favour of another ISD cannot be allowed as that would mean a total diversion from the principles of the system. If this is allowed in case of one firm, then every other firm might avail CENVAT Credit on bills issued in the name of other units \/ offices which would defeat the very purpose of ISD. Moreover, in this case, the appellant has not placed before me any evidence from where it can be surely inferred that the Mumbai office had not distributed the CENVAT Credit arising out of the same set of invoices on the basis of which the Kolkata unit i.e. the appellant availed and distributed the credit. Rather, they have chosen to rely on a plethora of case laws which I find to be inapplicable as there is no proof before me t<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n and that too for the purpose of evading payment of duty would not be sufficient to impose penalty. The adjudicating authority, without any basis or evidence, merely mechanically recorded that the assessee had, by reason of willful misstatement, suppression of fact or in contravention of the provisions of the Rules, evaded payment of central excise duty. He was not even sure whether this was a case of willful misstatement or suppression of fact or contravention of provisions of the Rules.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" NUVOCO VISTAS CORPORATION LIMITED Versus Commissioner of CGST & Central Excise, KolkataService Tax2018 (7) TMI 1600 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 6-7-2018ST\/75541\/2018 – FO\/A\/76416\/2018Service TaxSHRI P. K. CHOUDHARY, JUDICIAL MEMBER Shri Kaushik Dasgupta, Assistant Vice President (Indirect Taxation) for the Appellant (s) Shri H. S. Abedin, A.C. (AR) for the Respondent ORDER … Continue reading “NUVOCO VISTAS CORPORATION LIMITED Versus Commissioner of CGST & Central Excise, Kolkata”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12780","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12780","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12780"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12780\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12780"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12780"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12780"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n2. The ld. Representative of for the appellant company submitted that the availment of CENVAT Credit on services such as rent-a-cab service, health care service and interior decorator service were due to an error on the part of the appellant and had not been done with any mala fide intent. He further stated that as per Section 73(3) of the Finance Act, if a person has paid the tax liability on the basis of his own ascertainment or on the basis of tax ascertained by a Central Excise Officer, before service of show cause notice, no notice can be served in respect of such tax already paid. He further stated that Purchase Orders were issued from the Kolkata office, however, since the service providers were situated in Mumbai, they found it convenient to submit the invoices in Mumbai to be sent to Kolkata for payment. He also contested the inv<\/p>\n
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\nIn view of the above observation of the Hon'ble High Court, I do not find any material on record to establish fraud, collusion, willful misstatement or suppression of facts on the part of the appellant. Therefore, penalty under Section 78 of the Finance Act is unwarranted and is set aside. The matter is remanded to the Adjudicating Authority for verification of the documents and to pass order in accordance with law. Needless to say a reasonable opportunity of hearing be granted to the appellant. Bot<\/p>\n
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