2010 (8) TMI 271 - AT - Service Tax

Cenvat credit of service tax Limitation for utilization - Cenvat Credit utilized by the appellants in the year 2008-09 in relation to the credit availed during the period from 2005 onwards, denied to the appellants - absence of any limitation being prescribed under the statute, it is not permissible for the authority to impose such limitation for utilization of the Cenvat Credit Held that - appellants have stated that they have sufficient documentary evidence to establish procurement of input service in respect of which the credit was sought to be availed, it would be in the fitness of case to set aside the impugned order and remand the matter to the adjudicating authority to give an opportunity to the appellants in this regard and to pass an order afresh in accordance with the provisions of law after taking into consideration all such materials which may be produced by the parties in this regard

Summary

Issues:
1. Reduction of penalty by the Commissioner (Appeals) against the order of the adjudicating authority.
2. Availing Cenvat Credit without disclosing details of input service and invoices.
3. Dispute regarding actual receipt of input service and availability of credit.
4. Allegations of not immediately availing Cenvat Credit after procurement.
5. Ignoring Tribunal's order by the Commissioner (Appeals) and declaring it per incuriam.

Analysis:

1. The appeal stemmed from the Commissioner (Appeals) reducing the penalty imposed by the adjudicating authority against the appellants. The Commissioner allowed the appeal, reducing the penalty from an equal amount of duty to Rs. 5,000 but refused to interfere with the rest of the order, except setting aside the penalty against the Managing Director.

2. The appellants, engaged in manufacturing excisable goods, availed Cenvat Credit without disclosing details of input service and invoices. The show cause notice confirmed the demand of Service Tax and penalties, which were contested. The penalty against the Managing Director was quashed, and the penalty against the Company was reduced to Rs. 5,000. The appellants approached the Tribunal, aggrieved by this order.

3. The dispute revolved around the actual receipt of input service and the availability of credit. The appellants denied the allegations and claimed they could produce necessary documentary evidence. The authorities did not call for such evidence, but the appellants maintained accounts related to credit utilization for about five years.

4. The appellants contended that they did not immediately avail the Cenvat Credit after procurement due to lack of knowledge. They claimed to have sufficient documentary evidence to establish the procurement of input service, warranting a fair opportunity to establish their claim.

5. The Commissioner (Appeals) disregarded a Tribunal's order, declaring it per incuriam without proper analysis. The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for a fresh decision, allowing both parties to produce evidence. The appeal was allowed in favor of the appellants.