The Commissioner Of Central ... vs M/S Hinduja Global Solutions Ltd
2022 Latest Caselaw 4118 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH, 2022

                       PRESENT

         THE HON'BLE MRS.JUSTICE S.SUJATHA

                         AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                   C.E.A.No.64/2016

BETWEEN :
THE COMMISSIONER OF CENTRAL EXCISE
SERVICE TAX AND CUSTOMS
BANGALURU-II, P.B NO.5400
C.R.BUILDING, QUEENS ROAD
BENGALURU-560001
KARNATAKA.                                   ...APPELLANT

               (BY SMT.K.R.VANITHA, ADV.)

AND :
M/S HINDUJA GLOBAL SOLUTIONS LTD.,
HGSL HOUSE, NO.614
VAJPAYEE NAGAR
BOMMANAHALLI HOSUR ROAD
BENGALURU-560068.                           ...RESPONDENT

        (BY SRI G.SHIVADASS, SENIOR COUNSEL FOR
                 SRI.SYED M. PEERAN, ADV.)

      THIS CENTRAL EXCISE APPEAL IS FILED UNDER
SECTION 35G OF CENTRAL EXCISE ACT, ARISING OUT OF
ORDER DATED 19.01.2016 PASSED IN FINAL ORDER
No.20059/2016, CESTAT, SOUTH ZONAL BENCH, BENGALURU,
PRAYING TO 1] ANSWER THE SUBSTANTIAL QUESTIONS OF
LAW FRAMED ABOVE IN FAVOUR OF THE APPELLANT IN THE
INTEREST OF JUSTICE AND EQUITY. 2] SET ASIDE THE
IMPUGNED FINAL ORDER NO. 20059/2016 DATED19/01/2016
                                -2-



PASSED BY THE CESTAT, SOUTH ZONAL BENCH, BENGALURU
IN THE INTEREST OF JUSTICE AND EQUITY. 3] PASS SUCH
OTHER ORDER, DIRECTION AS THIS HON'BLE COURT DEEMS
FIT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST
OF JUSTICE AND EQUITY.

      THIS APPEAL COMING ON FOR HEARING, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed by the Revenue under Section

35G of the Central Excise Act, 1944 ['Act' for short]

assailing the order No.20059/2016 dated 19.01.2016

passed by the Customs, Excise & Service Tax Appellate

Tribunal, South Zonal Bench, Bengaluru ['CESTAT' for

short].

2. The appeal was admitted by this Court on

25.07.2017 to consider the following substantial

questions of law:

"1. Whether on the facts and in the circumstances of the case Tribunal was correct in overlooking the statutory provisions enacted by parliament which would amount to rewriting of the provision and recorded perverse finding?

2. Whether on the facts and in the circumstances the Tribunal was right in holding that CENVAT credit is eligible to be availed on invoices/debit notes issued by 'Input Service Distributor' [ISD] prior to their registration under the Service Tax [Registration of Special Category of Persons] Rules, 2005 without proper appreciation of the scheme and recorded perverse finding?"

3. The respondent/assessee is registered

taxable provider of services and is registered with the

jurisdictional service authorities for providing taxable

services.

4. During the course of audit of the service tax

records of the assessee, the department having found

that the assessee has availed and utilized CENVAT

credit on input services based on invoices/debit notes

issued by the head office during March, July and

August 2006 but the head office having got registered

under the Service Tax [Registration of Special Category

of Persons] Rules, 2005 ['Rules' for short] as 'Input

Service Distributor' [ISD] on 21.09.2006, issued show-

cause notice. The Commissioner after considering the

reply filed by the assessee and on examination of the

various provisions and notifications issued from time to

time on the disputed issue arrived at a conclusion that

the assessee is not entitled for CENVAT credit and

ordered recovery of the same. Being aggrieved, the

assessee has preferred appeal before the CESTAT which

came to be allowed. Hence, this appeal by the Revenue.

5. Learned counsel appearing for the Revenue

submitted that vide notification No.27/2005-ST dated

07.06.2005, Rules were notified. These Rules provided

for an ISD to make an application to the Jurisdictional

Central Excise Superintendent for obtaining registration

within a period of 30 days from the commencement of

business or 16th day of June-2005 whichever is later.

With the issue of notification No.27/2005-ST dated

07.06.2005 it was made mandatory for registration of

ISD and they alone would be entitled to avail CENVAT

Credit of input services. Based on the said notification,

Department has held that the respondent - assessee

was not entitled to avail the CENVAT credit on the

invoices/debit notes issued by the head office during

March, July and August 2006. The CESTAT without

appreciating this aspect of the head office having

registered under the Rules as ISD on 21.09.2006,

proceeded to give reliefs to the assessee. Accordingly,

seeks to answer the substantial questions of law in

favour of the Revenue allowing the appeal.

6. Learned Senior Counsel representing the

respondent has placed reliance on the judgment of the

Hon'ble High Court of Gujarat in the case of

Commissioner of Central Excise V/s. Dashion Ltd.,

[2016 [41] S.T.R. 884 (Guj.)] and the Circular dated

16.02.2018 issued by the Ministry of Finance

[Department of Revenue], Central Board of Excise &

Customs, New Delhi. Further, the order of the Hon'ble

High Court of Madras in the case of The Commissioner

of Central Excise V/s. M/s. Pricol Ltd., [2021 TIOL

331 HC-MAD-CX] was referred, to contend that the

Rules would not disentitle an ISD from availing CENVAT

Credit unless and until such registration was applied

and granted. It was argued that the requirement of

registration under the Rules was procedural and

curable. The judgment of the Hon'ble High Court of

Gujarat was accepted by the Department in terms of the

Circular dated 16.02.2018, in the case of Dashion Ltd.,

supra.

7. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

8. The dispute involved herein is no more res

integra in view of the judgment of the Hon'ble High

Court of Gujarat in the case Dashion Ltd., supra which

has been accepted by the Department in terms of the

Circular dated 16.02.2018. The relevant paragraphs of

the judgment of Dashion Ltd., supra is quoted

hereunder for ready reference:

"7. The second objection of the Revenue as noted was with respect of non- registration of the unit as input service distributor. It is true that the Government had framed Rules of 2005 for registration of input service distributors, who would have to make application to the jurisdictional Superintendent of Central Excise in terms of Rule 3 thereof. Sub-rule (2) of Rule 3 further required any provider of taxable service whose aggregate value of taxable service exceeds certain limit to make an application for registration within the time prescribed. However, there is nothing in the said Rules of 2005 or in the Rules of 2004 which would automatically and without any additional reasons disentitle an input service distributor from availing Cenvat credit unless and until

such registration was applied and granted. It was in this background that the Tribunal viewed the requirement as curable. Particularly when it was found that full records were maintained and the irregularity, if at all, was procedural and when it was further found that the records were available for the Revenue to verify the correctness, the Tribunal, in our opinion, rightly did not disentitle the assessee from the entire Cenvat credit availed for payment of duty. Question No.1 therefore shall have to be answered in favour of the respondent and against the assessee."

9. Considering this judgment, the Department

in the Circular dated 16.02.2018, has observed thus:

"2.(a) Decision of the Hon'ble High Court of Gujarat dated 08.01.2016 in the matter of Commissioner of Central Excise v.

of 2013 & 662 of 2014 [2016-TIOL-111-

HC-AHM-ST = 2016 (41) S.T.R. 884 (Guj]

(b) Decision of the Hon'ble High Court of Rajasthan dated 08.02.2016 in the matter of Commissioner Central Excise Commissionerate, Jaipur v. National Engineering Industries Ltd CEA No. 3/2016 [2016-TIOL-922-HC- RAJ-CX = 2016 (42) S.T.R. 945 (Raj.)].

2.1   Department         has         accepted        the
      judgments     where         the Hon'ble High
      Courts dismissed             the Department's
      appeal     inter      alia     holding         that

substantial benefit cannot be denied because of procedural irregularity.

2.2 In the case of Dashion Ltd., the assessee was engaged in manufacture of water treatment plant and other connected items and was availing benefit of CENVAT credit on the duty paid on inputs, capital goods and input services as permissible under CENVAT Credit Rules, 2004. The assessee had five manufacturing units and had its registered office at Vatva, Ahmedabad. The assessee was also

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providing several taxable services such as erection and commissioning, repairing and maintenance of water treatment plant, etc.

2.3 The revenue authorities, during scrutiny of the records of the assessee, noticed that it was availing the credit of service tax paid for various services by one unit for the purpose of clearance of other unit. After gathering details from the assessee, the adjudicating authority issued show cause notice calling upon the assessee as to why the CENVAT credit of service tax on input service should not be recovered with interest and penalties. In the show cause notice itself, the adjudicating authority had referred to sub-rule (3) of Rule 15 of the Rules of 2004 as basis for such proposal. Two primary objections of the Department werethat the assessee had not registered itself under the Service Tax (Registration of Special Category

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of Persons), Rules 2005 and that the tax credit from one unit was utilized for discharging tax liability of another unit instead of pro rata distribution amongst different units. The adjudicating authority confirmed the duty demands with interest and penalties.

2.4 Therefore, the points of law examined were that the assessee had utilized credit from one unit for the purpose of duty liability of its other unit without pro rata distribution by the input service distributor and further the assessee had not registered itself under the Service Tax (Registration of Special Category of Persons), Rules 2005.

2.5 Hon'ble High Court dismissed the department's appeal holding that such view was not sustainable as there was no previous restriction of this nature under Rule 7 of the CENVAT Credit Rules, 2004. Further non-

      registration        of       ISD    is     only      a
                            - 12 -



           procedural     irregularity     for     which

substantial benefit of CENVAT credit cannot be denied when all the necessary records have been maintained by the respondent."

10. The Hon'ble High Court of Madras referring

to the judgment of Dashion Ltd., supra, in M/s. Pricol

Ltd., supra has held thus:

"4. The above decision has been accepted by the Central Board of Excise and Customs, vide Circular dated 16.02.2018. Therefore, the above questions have to be decided against the Revenue and accordingly, decided so."

11. In view of the aforesaid, it is clear that the

CENVAT Credit claimed by the respondent-assessee on

the basis of the Invoices/Debit notes issued by the head

office for the months of March, July and August 2006

prior to its registration as ISD on 21.09.2006 being

procedural irregularity and the view of the Hon'ble High

Court of Gujarat being accepted by the Department,

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input tax credit cannot be denied. Accordingly,

substantial questions of law are answered in favour of

the assessee and against the Revenue.

Hence, Appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NC.