Service tax credit after 6 months
This query is : Resolved
18 September 2014
If invoice date is 15-MAR-2014 can i claim service tax credit in Oct-14
18 September 2014
Yes you can claim the cenvat credit on oct-14 .As per the amendment to the cenvat credit rules,2004 The limit of 6 months for availing cenvat credit is applicable on invoices issued after 01.09.2014.
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18 September 2014
In my view, the same can't be claimed. Since, the intention of legislature is to deny the CENVAT not taken till 1st Sep'14 ( whose 6 months have lapsed).
This is the only reason why they deferred the introduction of the newly inserted provision till 1st Sep'14, so that the assessee may get the opportunity to clear the backlog.
This is the only reason why they deferred the introduction of the newly inserted provision till 1st Sep'14, so that the assessee may get the opportunity to clear the backlog.
18 September 2014
Sumit i think if that had been the intention of legislature then they would have mentioned the amendment to be applicable retrospectively.
18 September 2014
Hi Annu To my knowledge, the same can't be construed as retrospectively, it is a prospective amendment. The eligibility of CENVAT is not questioned, since the same is dealt by rule 3 itself. However, only for timing they have fixed a deadline of 6 months, which is to be applicable from 1st Sep'14. Therefore, with due respect to your opinion, I strongly disagree and in my view, the same will be applicable for all the cases whose time limit of 6 months from the date of invoice lapse on 1st Sept'14.
Furthermore, if the contention of your goodself is accepted for a while for the sake of argument, then it shall allow all the CENVAT of past years( whose date of invoice was dated before 1st Sep'14), at the time of audit conducted by department in future years. In other words, suppose in 2016, department argued that for FY 11-12, a service tax liability is imposed, but assessee didn't pay during normal course and didn't avail CENVAT as well for that period. Now, as per your proposition, said CENVAT shall be allowed.
However, it doesn't appear to be the intention of the statue.
In my view, the time limit of 6 months should be construed for invoices lapsing on 1st Sep'14, rather than invoices issues post 1st Sep'14, unless explicitly clarified by CBEC.
Furthermore, if the contention of your goodself is accepted for a while for the sake of argument, then it shall allow all the CENVAT of past years( whose date of invoice was dated before 1st Sep'14), at the time of audit conducted by department in future years. In other words, suppose in 2016, department argued that for FY 11-12, a service tax liability is imposed, but assessee didn't pay during normal course and didn't avail CENVAT as well for that period. Now, as per your proposition, said CENVAT shall be allowed.
However, it doesn't appear to be the intention of the statue.
In my view, the time limit of 6 months should be construed for invoices lapsing on 1st Sep'14, rather than invoices issues post 1st Sep'14, unless explicitly clarified by CBEC.
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18 September 2014
Sumit I appreciate your explanation.
In support of my view, reference can be made to Universal Drinks Private Ltd., Nagpur vs. UOI and another [1984
(18) E.L.T. 207(Bom.)]which was
in the context of change of time period of claiming refund under rule 11 from 1 year to 6 months and it was held that the new rule 11 was prospective in its operation and would apply to the cases in which the right of claim refund arose after it came into force.
A similar position was taken by the Larger Bench of the Hon’ble Tribunal in
Rajasthan Worsted Spinning Mills vs.
CCE [1990 (47) E.L.T. 483 (Tribunal)
.
So i still agree with my words.
In support of my view, reference can be made to Universal Drinks Private Ltd., Nagpur vs. UOI and another [1984
(18) E.L.T. 207(Bom.)]which was
in the context of change of time period of claiming refund under rule 11 from 1 year to 6 months and it was held that the new rule 11 was prospective in its operation and would apply to the cases in which the right of claim refund arose after it came into force.
A similar position was taken by the Larger Bench of the Hon’ble Tribunal in
Rajasthan Worsted Spinning Mills vs.
CCE [1990 (47) E.L.T. 483 (Tribunal)
.
So i still agree with my words.
18 September 2014
Hi Annu
Thanks for the case law referred. But applying the same principle laid down by the court, the newly inserted provision is applicable for the CENVAT already eligible (under rule 3) but availed after 1st September'14 shall be subject to the time limit for 6 months.
The said verdict, even if squarely applies, it substantiate the view that the CENVAT availed after 1st Sep'14, shall be subject to the limit of 6 months.
It is reiterated that the rule talks specifically for time limit of CENVAT, it doesn't question the eligibility of CENVAT.
Thanks for the case law referred. But applying the same principle laid down by the court, the newly inserted provision is applicable for the CENVAT already eligible (under rule 3) but availed after 1st September'14 shall be subject to the time limit for 6 months.
The said verdict, even if squarely applies, it substantiate the view that the CENVAT availed after 1st Sep'14, shall be subject to the limit of 6 months.
It is reiterated that the rule talks specifically for time limit of CENVAT, it doesn't question the eligibility of CENVAT.
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