2011 (4) TMI 272 - AT - Service Tax

Demand - Cenvat credit - Real Estate Agent service providers - Non speaking order - The law as it stands does not permit the Commissioner (Appeals) to remand any matter - The position would have been different if in respect of some plea of the respondent, some verification of the records available in Divisional or Range Office was required which could be done only by the original adjudicating authority - The matter is remanded to the Commissioner (Appeals) with directions to decide the matter on records at his level. He can call the Divisional or Range officers, if any verification or clarification is required - Appeal is dismissed

Summary

Issues:
1. Disallowance of Cenvat credit by Asstt. Commissioner.
2. Appeal to Commissioner (Appeals) against the order.
3. Legality of remand by Commissioner (Appeals).

Issue 1: Disallowance of Cenvat credit by Asstt. Commissioner
The respondent, registered as Real Estate Agent service providers, were alleged to have utilized Cenvat credit of Rs.13,260/- for certain input services to which they were not entitled. The Asstt. Commissioner, in an ex parte order, disallowed the credit, imposed a penalty, and confirmed the demand. The respondent had pleaded that the credit was taken for commission paid to a registered individual, providing invoices as evidence. However, the Asstt. Commissioner denied the credit, stating that the service for which credit was claimed was not established as an input service by the respondent.

Issue 2: Appeal to Commissioner (Appeals) against the order
The respondent appealed to the Commissioner (Appeals) against the Asstt. Commissioner's order. The Commissioner (Appeals) set aside the order, directing a re-examination of the case with an opportunity for personal hearing to the appellant. The department filed an appeal arguing that the Commissioner (Appeals) did not have the power to remand the case, citing legal provisions and previous judgments. The legality of the Commissioner (Appeals) remanding the matter was questioned.

Issue 3: Legality of remand by Commissioner (Appeals)
During the hearing, the Revenue's appeal reiterated that the Commissioner (Appeals) did not have the authority to remand the case. The appellant's employee defended the Commissioner (Appeals)'s decision. The Tribunal, after considering submissions from both sides, concluded that the Commissioner (Appeals) had the authority to decide on the correctness of the original order based on available records without the need for verification. The Tribunal found the remand by the Commissioner (Appeals) not sustainable and set it aside, remanding the matter back to the Commissioner (Appeals) for a decision based on existing records at his level, allowing for clarification or verification if necessary from Divisional or Range officers.