2013 (4) TMI 350 - AT - Service Tax

Eligibility for the benefit of Notification No. 32/2004-ST dated 03.12.2004 denied - 75% abatement of the gross value of the transportation charges incurred subject to condition that the cenvat credit is not availed by the said transporter - denied - Held that - It is undisputed that the adjudicating authority has confirmed the demand only on the ground of non production of declaration for non availment of cenvat credit & if the contention of the counsel has to be accepted, then in this case the evidences need to be produced before the adjudicating authority who may consider the same in proper perspective. Thus the matter needs appreciation by the adjudicating authority in the remand proceeding.

Summary

Issues:
Waiver of pre-deposit of service tax, eligibility for benefit of Notification No. 32/2004-ST, production of declaration for non-availment of cenvat credit.

Analysis:
The appellant filed a stay petition seeking the waiver of pre-deposit of service tax amounting to Rs. 39,16,825/- along with interest and penalty under the Finance Act, 1994. The adjudicating authority confirmed the said amounts, citing the appellant's ineligibility for the benefit of Notification No. 32/2004-ST, which allows for 75% abatement of transportation charges provided cenvat credit is not availed by the transporter. The appellant failed to produce evidence in the form of a declaration for non-availment of cenvat credit, resulting in the demand for Rs. 39,16,825/- remaining unresolved. The appellant now claims to have located such declarations and is prepared to submit them, although they were not presented during the initial proceedings before the adjudicating authority.

Upon reviewing the submissions from both parties, the Tribunal acknowledged that the primary issue revolves around the availability of the declaration regarding non-availment of cenvat credit, which directly impacts the duty demanded. The Tribunal noted that the adjudicating authority based the demand solely on the absence of this declaration. To address this, the Tribunal emphasized the necessity of presenting these declarations before the adjudicating authority for proper evaluation. Consequently, the Tribunal decided to set aside the impugned order and remand the case back to the adjudicating authority for a fresh review, emphasizing the importance of adhering to the principles of natural justice during the reconsideration process.

In conclusion, the Tribunal refrained from expressing any opinion on the validity of the declarations but stressed the need for the adjudicating authority to reevaluate the matter comprehensively, considering all aspects and evidence presented by the appellant. The decision to remand the case back for further examination ensures a fair and thorough review of the issues at hand, particularly concerning the production of declarations related to cenvat credit non-availment.