T.C.D. Sekhar, J.

1. The petitioner is a registered company engaged in the business of providing Port services (Major Ports) to the exporters of granite and stones by acting as “Shipping Agents” on behalf of M/s.Krishnapatnam Port Company Limited, Krishnapatnam Port, SPSR Nellore District, under agreement dated 01.09.2011, and also providing auxiliary services in Kakinada Port through agreement dated 04.10.2012 with M/s.Kakinada Seaports Limited, Kakinada. The petitioner’s registered office is located at D.No.24-6-88, Plot No.G3, Pooja Gardens, Saraswathi Nagar, Dharga Mitta, Nellore, SPSR Nellore District, with registration No.STC No.AADCT9447LSD001, dated 19.09.2011.

2. The petitioner changed the registered office from time to time by making necessary amendments to the registration certificate. It is further case of the petitioner that, it used to file periodical returns in Form-ST3 since the date of its registration by duly declaring the liability on outward services provided and discharged the tax liability thereon by setting off the taxes paid on the input services availed following the procedure under Rule 4A of the Service Tax Rules, 1994 and Rule 9 of CENVAT Credit Rules, 2004, read with Section 70 of the Service Tax (Finance Act), 1994.

3. Be that as it may, the case of the petitioner was taken up for audit by the 3rd respondent, and having verified the CENVAT credit availed on the input services, especially the input services received from M/s.Krishnapatnam Port Company Limited and Kakinada Seaports Limited, the invoices raised by the petitioner were accepted by the audit team for the period from September 2011 to March 2016, despite the fact that the address raised in the invoices did not match with the address mentioned in Form-ST2.

4. While so, the 3rd respondent for the first time issued notice dated 14.02.2019, calling upon the petitioner to submit objections, inasmuch as the petitioner availed irregular CENVAT credit on the basis of invoices issued by M/s.Kakinada Seaport Limited on the input services, on the ground that the address of the company as per Form-ST2 is amended (last address D.No.JA-2-21, Triple Line India Private Limited, Masjid Road, 3rd Line, Annavarappadu, Ongole, Andhra Pradesh), but in the address it was mentioned as “Judge Jumbulingam Road, Mylapore apartment No.4, 1st Floor, Shanti Apartments, No.22-Chennai-600004”. As the input service credit invoices do not contain the registration number of the service recipient, it was informed that the petitioner had availed irregular CENVAT credit by placing invalid documents in contravention of Rule 4A of the Service Tax Rules, 1994, read with Rule 9 of the CENVAT Rules 2004, and required the petitioner to reverse the CENVAT credit availed by it.

5. Subsequently, the petitioner was served with final audit report dated 01.05.2019 by the 3rd respondent stating that, the petitioner has availed irregular CENVAT credit, and in furtherance thereto, show cause notice dated 15.10.2019 was issued by the 1st respondent, proposing a tax demand of Rs.4,91,35,881/-, inasmuch as the address mentioned on the invoices is not tallied with the registration certificate.

6. The petitioner filed objections through its letters dated 22.01.2020 and 21.12.2020, bringing it to the notice of the authorities that the invoices raised by the petitioner were accepted by the audit team from September 2011 to March 2016. It was further averred in the objections that, as per the agreement dated 04.10.2012 entered into by the petitioner with M/s.Kakinada Seaports Limited, the address of the petitioner was mentioned as Apartment No.4, 1st Floor, Shanti Apartments, No.22-Judge Jumbulingam Road-Mylapoor-Chennai-600004. It was further stated that, the accounting staff at Kakinada Sea Port who are preparing the invoices has entered the above address in their SQL Master Server and therefore the same address continued whenever it raised invoices. It was also averred that, though a request was made to them to change the address, nothing was fructified thereon. Therefore, the petitioner contends that there is no irregular CENVAT credit as alleged in the show cause notice.

7. The 1st respondent after affording an opportunity of being heard to the petitioner by impugned order dated 07.07.2022, conformed the demand of Rs.4,91,35,881/- by holding that the petitioner had irregularly availed and utilised CENVAT credit as per Rule 14 of the CENVAT credit Rules, 2004, by imposing 100% penalty along with interest. Questioning the same, the present writ petition is filed.

8. The respondents have filed counter affidavit supporting the order under challenge by reiterating what has been stated in the impugned order.

9. The counsel for petitioner would submit that the impugned order is liable to the set aside, inasmuch as the 1st respondent without properly appreciating the case of the petitioner in its proper perspective had come to the conclusion that it had irregularly availed CENVAT credit. He would further submit that, the ground on which the order under challenge was issued is that, the address mentioned in the invoices is not tallied with the registration certificate. He would further submit that, as per Rule 4A of the Service Tax Rules, 1994, the petitioner had submitted all the documents as required. He would further submit that, as per Rule 9(2) of the CENVAT credit Rules, 2004, the invoices raised by the petitioner do contain the details of duty or service tax payable, description of the goods etc., including the registration number of the person issuing invoices. He would further submit that, in such circumstances, the order under challenge is not sustainable, as the petitioner had submitted all the documents by mentioning the particulars of the taxable services.

10. On the other hand, while supporting the order under challenge, Sri Y.N.Vivekananda, learned Senior Standing Counsel for CBIC would submit that, admittedly the address mentioned in the invoices do not tally with that of the address mentioned in the registration certificate of the petitioner. As the petitioner submitted the invoices which contained incorrect addresses on the basis of which the CENVAT credit was availed/utilised, do not qualify as valid documents as per Rule 9(1) of the CENVAT credit Rules, 2004. Therefore, it is contended that there is no illegality in the order under challenge.

11. We have considered the respective submissions of the counsel appearing for the parties. It is not in dispute that the impugned order was passed on the only ground that the address mentioned in the invoices raised by the petitioner does not tally with the address mentioned in the Form-ST2 registration certificate issued during the relevant period. For proper appreciation of the case on hand, it is relevant to reproduce the findings recorded by the 1st respondent:

                  17.11. The issue at hand is not about to whom and where the assesse provided service to a person/Service Recipient. It is about whether address mentioned in Input service invoices are business premises declared by the assessee as per S.T-2 Registration Certificate issued by the Department or not. As such the reason stated by the assessee for issue of Input service invoice by M/s.Kakinada Seaport Limited with above said address is of no use to them.

                  17.12. As per Rule 4A(ii) of the Service Tax Rules, 1994, the name and address of the person receiving taxable services should be mentioned on the invoice and such invoice is the proper document for availing CENVAT Credit under Rule 9(1) of CENVAT Credit Rules, 2004. In the present case, the addresses mentioned in some of the input service invoices are not those of the business premises which were listed in the ST-2 Registration Certificate issued during the said period. Hence, the invoices on which CENVAT Credit was availed/utilised are not proper documents under Rule 9(1) of CENVAR Credit Rules, 2004.

                  17.6. From the above, it is clear that the assessee intentionally and wilfully availed the CENVAT Credit on the invoices bearing the address other than the addresses mentioned in the ST-2 Registration Certificate in contravention Rule 9 of CENVAT Credit Rules, 2004 and Rule 4A of Service Tax Rules, 1994 and that the irregularly availed and utilised the CENVAT Credit of Rs.4,91,35,881/- (including Cesses) for the period from April, 2004 to June, 2017 is liable to be recovered under Rule 14 of the CENVAT Credit Rules, 2004 read with the proviso to Section 73(1) of the Finance Act, 1994.

12. A perusal of the findings recorded by the 1st respondent it is clear that, while passing the impugned order, he did not undertake the exercise of going into the merits of the matter so as to determine, whether the petitioner is entitled to avail the CENVAT credit as per law or not. It is apparent from the record that, the impugned order came to be passed on mere technicalities.

13. Further, it is evident from the agreement dated 04.10.2012 entered into between the petitioner and M/s.Kakinada Seaports Limited, the address of the petitioner was mentioned as Apartment No.4, 1st Floor, Shanti Apartments, No.22-Judge Jumbulingam Road-Mylapore-Chennai-600004. Further, the same address was continued while raising invoices by the petitioner, despite the same was brought to the notice of the accounting staff at Kakinada Sea Port. As the address of the petitioner was registered in SQL Master Server of M/s.Kakinada Seaport Limited, the inadvertence had continued. Apart from the same, the invoices raised by the petitioner fulfil the conditions enunciated under Rule 4A of the Service Tax Rules, 1994. Therefore, the 1st respondent, without recording any reason on the contentions/objections raised by the petitioner, had disallowed the availment of CENVAT credit by the petitioner on mere technicalities.

14. In the circumstances, the order under challenge is liable to be interdicted and set aside. Accordingly, the present writ petition is allowed by setting aside the impugned order dated 07.07.2020, and the matter is remanded to the 1st respondent for fresh consideration. Further, the 1st respondent shall issue notice to the petitioner and after affording opportunity of being heard, pass appropriate orders. There shall be no order as to costs.

As a sequel, pending applications, if any shall stand closed.