2011 (7) TMI 568 - AT - Service Tax

Photography services - assessee did not debit CENVAT credit account for the period 1.2.2005 to 30.6.2006 - Held that - The case law relied upon by the assessees namely Ad Vision Vs CST, Ahmedabad 2010 (11) TMI 294 - CESTAT, AHMEDABAD holding that non-debit in CENVAT credit account of service tax is a technical ground and therefore demand of service tax is not justifiable, is applicable on all fours to the facts of the present case. In the present case contention of the assessees is that during the period of non-debit, sufficient credit was available. This statement is required to be verified by the adjudicating authority who is also required to consider the question of levy of interest and imposition of penalty, if it is found that sufficient credit was not available - thus the case remitted for fresh decision to the adjudicating authority.

Summary

Issues:
1. Non-debit of CENVAT credit account by photography service providers from 1.2.2005 to 30.6.2006.
2. Recovery of interest and imposition of penalty under extended period of limitation.
3. Review of adjudicating authority's order leading to the demand of appropriate interest under Section 75 of the Act and imposition of penalty.

Analysis:

1. The assessees, engaged in providing photography services, failed to debit their CENVAT credit account during a specific period. A show cause notice was issued proposing the recovery of interest and imposition of penalties under the extended period of limitation. The adjudicating authority confirmed the demand but dropped proceedings for recovery of interest and certain penalties. However, a revision order was passed demanding interest under Section 75 of the Act and imposing penalties starting from a specified date. The appeal was filed against this order.

2. The Tribunal considered the case law cited by the assessees, which highlighted that the non-debit in the CENVAT credit account of service tax is a technical issue. The Tribunal in a similar case had directed the verification of the credit account and deduction of sufficient credit from the actual service tax liability if available. In the present case, the assessees claimed that sufficient credit was available during the non-debit period. The Tribunal emphasized the need for the adjudicating authority to verify this claim, along with considering the levy of interest and penalties if the credit was found to be insufficient.

3. Consequently, the impugned order was set aside, and the case was remitted to the adjudicating authority for a fresh decision. The authority was instructed to follow the guidelines provided by the Tribunal and grant a reasonable opportunity for the assessees to present their defense. The appeal was allowed by way of remand, ensuring a fair reconsideration of the issues involved.

4. The judgment was dictated and pronounced in open court, emphasizing the legal process and transparency in the decision-making. The detailed analysis and remand order aimed to address the complexities of the case and ensure a just outcome based on the facts and legal principles involved.