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CENVAT CREDIT UNDER SERVICE TAX AND EXCISE

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CENVAT CREDIT UNDER SERVICE TAX AND EXCISE CA Naresh Sheth 1. Preamble: Excise Duty and Service Tax are Central Government levy. Both are destination based consumption tax, incidence of which is passed
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CENVAT CREDIT UNDER SERVICE TAX AND EXCISE CA Naresh Sheth 1. Preamble: Excise Duty and Service Tax are Central Government levy. Both are destination based consumption tax, incidence of which is passed on to ultimate consumers. These are major indirect taxes which operate on value added scheme of taxation (VAT system). Under VAT system, each person in transaction chain is taxed on the value addition done by him. The concept of taxing value addition is achieved by granting credit of input tax or duties to manufacturer / service provider through Cenvat Credit Scheme. This scheme integrates Central Government indirect taxes viz. Excise Duty and Service Tax. The Cenvat credit scheme operates through Cenvat Credit Rules, 2004 (hereinafter refereed to as CCR ). This article deals with current provisions only. For the sake of brevity, scope of article is restricted to substantive provisions of Cenvat Credit Rules, Article does not deal with provisions pertaining to procedures, penalty and interest. The purpose of this article is to elucidate basic concepts relating to CCR in simple and lucid manner and hence author has refrained from reproduction of sections, rules and clauses etc in this article. 2. Historical back ground: 2.1. Manufacturers: Period to to onwards Relevant Scheme / Rules Modvat Scheme Modvat Scheme Cenvat Credit Rules, 2004 Assessee s entitlement Credit for duties paid on inputs only. Credit for duties paid on inputs. Credit for duties paid on capital goods. Credit for duties paid on inputs. Credit for duties paid on capital goods. Credit for service tax on input services. Page 1 of 38 2.2. Service Providers: Period to to to onwards Relevant Scheme / Rules Assessee s entitlement ---- No credit for input service tax. Service Tax Credit Rules, 02 Service Tax Credit Rules, 02 Cenvat Credit Rules, 2004 Credit for service tax paid on input services falling in same category. Credit for service tax paid on all input services used for providing out put services. Credit for duties paid on all input goods. Credit for duties paid on capital goods. Credit for service tax paid on all input services. 3. Extent and commencement of present Cenvat Scheme: Cenvat Credit Rules, 2004 is introduced w.e.f vide Notification No.23/2004-Central Excise (N.T.) dated This is a unique Rule which is common for Excise and Service Tax legislation. The input tax credit mechanism under both these legislations is governed by this Rule. CCR extends to whole of India with some exception for Jammu and Kashmir. Service tax is not applicable to Jammu & Kashmir. Proviso to Rule 1(2) of CCR, therefore, provides for non-applicability of these Rules to service tax. Cenvat implications in Jammu & Kashmir (J&K) are as under: Manufacturer in J&K is entitled for Cenvat credit of duty on inputs and capital goods. However he is not eligible to claim Cenvat credit of service tax, if any, paid on input services. Service provider in J&K is not entitled to Cenvat credit of duty / tax on inputs, capital goods and input services. 4. Basic Objectives of Cenvat Credit Mechanism: 4.1. To avoid or minimize cascading effect of indirect taxes To minimize tax incidence on ultimate consumer of goods / services To ensure levy of tax on value addition by respective assessee To eliminate or minimize possibilities of levy of tax on tax. Page 2 of 38 Following table helps readers in understanding how Cenvat scheme achieves its objectives: Tax Scenario - Pre and Post Cenvat: Cost break up Basic Cost Tax Element Total Cost Remark Raw Material 1,00,000 8,240 1,08,240 Excise rate 8.24% Taxable Services availed 50,000 5,150 55,150 Service tax 10.30% Overheads (Not liable to ST) 25, ,000 Profit markup 20,000 20,000 Total 1,95,000 13,390 2,08,390 Excise duty on finished goods 16,068 17, % Sales price 2,11,068 30,561 2,25,561 Pre-Cenvat price Less : Cenvat (Input Tax) (13,390) (13,390) Excise duty on tax element of (1,103) (1,103) Rs.13,190. Sales price (Post-Cenvat) 2,11,068 16,068 2,11, Underlying philosophy of scheme: Cenvat scheme is based on mutual trust. Entire scheme can be visualized as self maintained duty entitlement / utilization passbook by the manufacturer / service provider. The revenue authorities usually rely on the records of assessee. It is, therefore, incumbent on assessees to be conservative and cautious while availing benefits under Cenvat Scheme. The deterrent provisions for levy of interest and penalties are prescribed for wrong availment and utilization of Cenvat credit. 6. Concept of availment and utilization: Availment of input tax credit and utilization of accumulated tax credits are important aspects of the scheme. Many people feel that availment and utilization is one and the same. However, both are different from each other as explained under: Availment refers to assessee s entitlement to claim input tax credit. Availment of input tax credit is a first stage of scheme. Assessee is entitled to avail tax / duty credit on inputs, capital goods and input services used for providing taxable services or manufacture of dutiable goods. Availment can be visualized as credit entry in self maintained pass book. Page 3 of 38 Utilization means use of Cenvat credit balance for payment of out put tax such as excise duty, service tax, education cess etc. Output tax liability can be discharged from accumulated Cenvat. There is no difference between physical cash payment and payment from Cenvat account. Utilization can be visualized as debit entry in self-maintained pass book. 7. Nature of Input tax credit: Material cost, capital cost and overheads are major cost components for any manufacturer or service provider. All these cost components suffer tax incidence in form of excise duty or service tax levied by vendors. CCR uses following terms for cost components suffering input tax incidence. Input Raw materials, consumables and other goods used in manufacture or service provision. Capital goods Assets used for manufacture or service provision. Input services Services used for manufacture or service provision. Above terms are specifically defined in CCR and it has specific meanings. Same are dealt at length in later part of this article. 8. Persons eligible for Cenvat Credit: Following persons are eligible for Cenvat Credit under Rule 3(1) of CCR: Manufacturer of final products. Provider of taxable service. Term final product is defined under Rule 2(h) of CCR to mean excisable goods manufactured or produced from inputs or using input services. Thus the person engaged in the manufacturing activity as defined under Section 2(f) of Excise Act, 1944 can be treated as manufacturer of final products. Section 65(105) of Finance Act, 1994 lists out the taxable services. The provider of any of such services [except GTA service covered under Section 65(105)(zzp)] is a provider of taxable service. Above referred persons are entitled to Cenvat credit provided their activities are not exempt under excise or service tax legislation. Page 4 of 38 9. Person not eligible for Cenvat availment:: Following persons are not eligible for Cenvat availment as they are not manufacturer of excisable goods / provider of taxable services or there are specific provisions restricting Cenvat availment: Traders including Importers, Wholesalers, Retailers, Stockiest. Manufacturer of non-excisable goods. Manufacturer of excisable goods availing small scale exemption under Notification No. 8/2003 is not entitled to Cenvat in respect of input and input services. However, such a manufacturer is eligible for Cenvat in respect of capital goods. Job worker claiming excise exemption under Notification No. 214/86. Provider of non-taxable or exempt services. Service provider claiming threshold exemption under Notification No.8/2008-ST dated Service provider claiming deduction of value of goods sold / used under Notification No. 12/2003 dated is not eligible for Cenvat of excise duty on input goods. Goods transport operator as GTA service is excluded from the definition of output service as defined under Rule 2(p) of CCR. Service provider providing works contract services and opting for composition scheme is not entitled to Cenvat credit in respect of inputs. However, such a service provider is eligible for Cenvat Credit in respect of capital goods and input services. Following service providers are entitled to claim abatement under Notification No. 1/2006 dated : Mandap Keepers Tour Operators Rent-a-Cab Services Convention Outdoor Catering Pandal & Shamiana Services Services Erection Commercial or Industrial Construction of Complex Commissioning or Construction Service Installation Transportation of Goods in Container by Rail Job workers for manufacture of cycle, cycle rikshaw, hand operated machine. sewing Services provided in relation to Chit (Notification No. 27/2008-ST dated Page 5 of 38 If such service provider claims Cenvat, he is not entitled to abatement under the said notification. Even minuscule claim of Cenvat credit will jeopardize the abatement claim. Such service provider should be very cautious in this regard. 10. Eligibility of manufacturer exporter / service exporter to avail Cenvat Credit : Question is often raised whether manufacture exporter not paying excise duty on clearance of goods or service exporter exporting service without payment of service tax is eligible for Cenvat? It is clarified by Ministry of Law Advice dated that goods cleared for export is a clearance `without payment of duty. They are not exempt goods. CBE&C Circular No.278/112/96-CX dated have also confirmed that exempted goods are those goods which are exempted U/S 5A of Central Excise Act. This can be termed as chargeable to `Nil rate of duty as in fact goods are dutiable. Thus goods exported under bonds are not exempt goods. This view has been accepted by judiciary in Reliance Industries Ltd Vs CCE 1999 (112) ELT 653 (CEGAT) and many other cases. Exempted services U/R 2(e) means the services exempt from whole of service tax leviable thereon or services on which no service tax is leviable U/s 66. Export of services is not exempted under any notification. Service tax is leviable U/s 66 of Finance Act on such services. The said services are allowed to be exported without payment of service tax under Rule 4 of Export of Service Rules, Export of services is not exempted services within the meaning of CCR. This view is confirmed by CBE&C Circular No.868/6/2008-CX dated Even Rule 5 of CCR takes cognizance of this legal position. It entitles manufacturer exporter / service exporter to claim refund of accumulated Cenvat credit balance. In view of what is stated above, one may safely conclude that manufacturer exporter / service exporter is eligible to avail Cenvat credit in respect of export of excisable goods or export of taxable services. 11. Duties, Taxes, Cess Eligible For Tax Credit: Rule 3(1) of CCR prescribes following duties, taxes and cess paid on inputs, capital goods and input services are eligible for Cenvat Credit. Page 6 of 38 11.1. Regular / general: Excise duty under 1st and 2nd Schedule to Excise Tariff Act. Service tax leviable U/s 66 of Finance Act 1994 (Refer Para 11.3). Additional duty leviable under Section 3 of Customs Tariff Act equivalent to duty of excise specified. Additional duty leviable under section 3(5) of Customs Tariff Act in lieu of VAT. - Only manufacturer is entitled for Cenvat in this regard. Service provider is not entitled. Excise duty under 1st and 2nd Schedule to Excise Tariff Act. Education cess on excise duty and service tax Secondary and Higher Education cess on excise and service tax Non-regular and industry specific: Additional duty of excise leviable under 3 of the additional duty of excise (Textile and Textile Articles Act, 1978) Additional duty excise (Goods of Special Importance Act, 1957) National Calamity Contingent duty leviable under Section 136 of Finance Act, Additional duty of excise levied for pan masala and certain tobacco products under Section 85 of Finance Act, Additional duty of excise leviable under Section 157 of Finance Act, 2003 (32 of 2003) Service tax leviable U/s. 66 of Finance Act should include the following: Service tax paid at full rate on various services. Service tax paid on abated value of services such as construction services, rent-a-cab, Mandap keeper, outdoor caterers etc. Service tax paid under composition scheme under works contract service category. Service tax paid at alternate rate on services such as air travel agent services, foreign exchange broker s services, insurance services etc. Page 7 of 38 The manufacturer / service provider can avail the Cenvat credit in respect of input services irrespective of rate at which service tax is paid by service provider on such services. 12. Cenvat availment: CCR allows input tax credit at the time of entry of input, capital goods or services in the value addition chain i.e. at the time of purchase / payment for the same. There is no requirement as to one to one corelation of inputs with final output. In order to avail the Cenvat credit, broad nexus of inputs / capital goods / input services with manufacture and / or service provision is enough Manufacturer / service provider can avail Cenvat Credit of relevant duties / tax at following point of time: Duty on Input goods Duty on Capital goods Service tax on Input services On receipt of goods in the factory of manufacturer / premises of service providers Rule 4(1) of CCR. 50% in the financial year of receipt of capital goods in factory of manufacturer or premises of service providers and balance in any subsequent financial year(s) Rule 4(2) of CCR. On payment of value of the input service and service tax thereon Rule 4(7) of CCR Assessee (through inadvertence) may not avail Cenvat credit in time or claim it at later point of time. Department has clarified that assessee should claim Cenvat at earliest opportunity. This does not mean that benefit of Cenvat could be denied to assessee in case where such availment is delayed. Excise manual treats period of one year as a reasonable period for claiming Cenvat credit. There is plethora of judgments which held the period exceeding one year also to be reasonable period for Cenvat availment. Honorable Supreme Court in the case of Formica India Division Vs CCE (1995) 77 ELT 511 (SC) explains underlying principle in this regard. Honorable Allahabad High Court, in case of CCE Vs Ram Swarup Electrical Ltd 2007 TIOL 640 held that there is no time limit for assessee to avail MODVAT as the MODVAT (Cenvat) claim is indefeasible Provisions of law may be different at the time of availment and utilization. It is fairly settled legal position that law applicable at point of availment is relevant and not law applicable at point of utilization. This view is fortified by Honorable Supreme Court in case of Grasim Industries Ltd Vs CCE 179 ELT A38. Page 8 of 38 13. Documents on which Cenvat credit can be availed: Manufacturer, service provider and / or input service distributor can avail the Cenvat credit on the basis of following documents specified in Rule 9(1) of CCR. These documents are popularly known as duty / tax paid documents. Invoice / bill / challan issued by : Manufacturer Importer Consignment agent of manufacturer / importer First stage or second stage dealer (Refer Para 13.4) Service provider Input service distributor (Refer Para 13.5). Bill of entry Certificate issued by custom appraiser for goods imported through post office. Challan evidencing payment of service tax paid under Rule 2(1)(d) Invoice, bill or challan should contain all the particulars prescribed under Central Excise Rules, 2002 or Service Tax Rules, 1994 as the case may be (Rule 9 (2) of CCR). In absence of prescribed particulars, Cenvat Credit can be denied. Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise may allow Cenvat credit on the basis of deficient document provided he is satisfied that the goods or services covered by the document is received and accounted for in books of account of the assessee (Proviso to Rule 9 (2) of CCR) It is fairly settled law that assessee should not be deprived of benefits of Cenvat Scheme for procedural lapse or defects. Cenvat credit can not be denied to assessee complying with substantive provisions / rules of CCR. In absence of malafide intention on the part of assessee, procedural infractions / lapses may be condoned. The assessee may rely on following judicial precedence in support of his contention: Maschmeijer Aeromatics (I) Ltd Vs CCE 46 ELT 395 (Mad CEGAT) Page 9 of 38 Aluminum Industries Ltd Vs CCE 1993 (65) ELT 460 (Mad. CEGAT) Honorable Supreme Court, in case of Mangalore Chemicals & Fertilizers Ltd [55 ELT 437], observed that there is a distinction between procedural condition of a technical nature and substantive condition. Non-observance of former is condonable while that of a latter is not condonable. Honorable Tribunals and Courts have followed this principle in large number of cases Cenvat credit can be availed on basis of invoice issued by dealer registered with Central Excise. First stage and second stage dealer registered with Central Excise can issue Cenvatable invoice. First stage dealer means dealer purchasing goods from manufacturer or his depot or consignment agent. Second stage dealer means dealer purchasing excisable goods from first stage dealer. This mechanism is provided to ensure that Cenvat chain does not break when purchaser buys the goods from traders and not directly from the manufacturer Rule 7 of CCR provides for Input Service Distributor mechanism. Many assessees have factories / service units at different locations and corporate / registered / administrative office at different location. Usually input service taxes are paid and invoices are received at office. Such office can be registered as Input Service Distributor and can distribute Cenvat credit of service tax availed by it by issuing an invoice to manufacturing units or units providing output service. The distribution of credit can be done in any ratio among various units. However, total credit distributed should not be more than service tax paid on input services. If some input service is exclusively used for exempted final product / output service, input service distributor can not avail and distribute such input service tax under this mechanism Rule 7A of CCR provides for Input Credit Distributor mechanism (ICD). Such ICD can distribute credit on duty paid on inputs (goods) if invoice received by it to factories and service units. Since Cenvat credit can be passed through mechanism of endorsement of invoice, this facility is not much used by the assessee. Page 10 of 38 14. Utilization of Cenvat credit: Rule 3(4) of CCR allows the manufacturer or service provider to utilize the Cenvat credit for discharging liabilities in respect of: Excise duty on any final product. An amount equal to Cenvat credit taken on inputs if such inputs are removed as such or after being partially processed; or An amount equal to the Cenvat credit taken on capital goods if such capital goods are removed as such; or An amount under Rule 16(2) of Central Excise Rules, 2002; or Service tax on any out put service Cenvat credit availed in respect of Excise duty, Service tax, CVD etc become integral part of Cenvat credit pool / common kitty available for utilization. Once credit for any tax / duty is properly availed, its individual character / identity is lost except for education cess and higher education cess. Thus Cenvat credit built up out of Excise duty, CVD, Additional duty etc on input / capital goods can be utilized for payment of service tax and vice-a-versa Cenvat credit built up out of education cess can be utilized only for payment of education cess on excise duty and service tax. It can not be utilized for the payment of excise duty, service tax and secondary higher education cess. - Proviso to Rule 3(
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