2010 (7) TMI 373 - AT - Service Tax

Adjudication order non application of mind - Rule 9(2) apparently gives discretion to the adjudication authority to ascertain whether tax due on inputs and input service has actually been paid and such input or input service has actually be used or is to be used in the manufacture of final products or in providing output service - if satisfied in this regard, to give necessary concession to the assessee in relation to any procedural irregularity in relation to maintenance of documents on the basis of which cenvat credit can be availed Held that - liability of the assessee under Cenvat Credit Rules, the adjudicating authority is expected to apply its mind to this aspect of the matter and thereafter to arrive at the final conclusion about liability of the assessee in this regard - order is liable to be set aside and the matter to be remanded to the adjudicating authority

Summary

Issues:
1. Alleged wrongful availing of cenvat credit of service tax without complying with statutory provisions.
2. Denial of principles of natural justice in not providing copies of reports relied upon.
3. Failure to apply discretion under Rule 9(2) of Cenvat Credit Rules, 2004.
4. Non-consideration of all original invoices during the verification process.

Analysis:
1. The appellants were engaged in providing telecommunication services and availed cenvat credit of service tax without complying with statutory provisions. A show cause notice was issued, leading to the disallowance of a specific amount of cenvat credit by the Commissioner. The appeal was filed against this order, primarily challenging the reliance on reports not provided to the appellants, thus denying principles of natural justice.

2. The Tribunal identified that the reliance on reports without furnishing copies to the appellants was a violation of natural justice principles. The Commissioner's failure to provide copies of reports forming the basis for the duty liability decision was considered unjust. The Tribunal emphasized the importance of providing relevant documents to the assessee before determining liability, unless there are statutory prohibitions or justifiable reasons.

3. Rule 9(2) of Cenvat Credit Rules, 2004 grants discretion to the adjudication authority to consider whether tax on inputs has been paid and if the inputs have been used in manufacturing final products or providing services. The Tribunal noted that the impugned order did not demonstrate the application of this discretion by the adjudicating authority. Consequently, the order was deemed insufficient and lacked the necessary exercise of discretion.

4. Another ground for remand was the appellants' claim that all original invoices were available for verification, which was not adequately addressed during the initial adjudication. The Tribunal highlighted the appellants' contention that the original invoices were verified during a visit to their office, indicating a discrepancy in the verification process. The matter was remanded for fresh adjudication, emphasizing the importance of considering all original invoices during the verification process to ensure a fair decision-making process.

In conclusion, the Tribunal set aside the impugned order and remanded the matter for fresh adjudication, emphasizing the need for adherence to natural justice principles, proper application of statutory provisions, and thorough consideration of all relevant documents during the decision-making process.