2014 (8) TMI 262 - AT - Service Tax

Demand of service tax - Disallowance of CENVAT Credit - Held that - Commissioner (Appeals) had not addressed the issues raised in the Memorandum of Appeal, which include short payment of service tax and imposition of penalty, even though he had allowed the Appeal on wrong availment of CENVAT Credit in favour of the Appellant - In absence of appropriate finding of Commissioner matter is remanded back - Decided in favour of assessee.

Summary

Issues: Application seeking waiver of predeposit of Service Tax and penalty, wrong availment of CENVAT Credit, short payment of Service Tax, imposition of penalty by the Adjudicating Authority.

Waiver of Predeposit and Final Disposal: The Application sought waiver of predeposit of Service Tax amounting to Rs. 18.88 lakh and penalty of Rs. 51.26 lakh. The ld. Advocate for the Applicant highlighted that the demand initially comprised wrong availment of CENVAT Credit and short payment of Service Tax. The ld. Commissioner (Appeals) allowed the plea on disallowance of CENVAT Credit but did not address the issue of short payment of service tax or the imposition of penalty. The ld. AR for the Revenue agreed that no categorical finding was recorded on these issues. The Tribunal, after hearing both sides, waived the requirement of predeposit and decided to take up the Appeal for final disposal with the consent of both parties.

Issues Unaddressed by Commissioner (Appeals): The Tribunal noted that the ld. Commissioner (Appeals) did not address the issues raised in the Memorandum of Appeal regarding short payment of service tax and the penalty imposed by the Adjudicating Authority. Despite allowing the Appeal on wrong availment of CENVAT Credit, the Commissioner did not provide findings on the other issues. Both parties agreed that these unresolved matters should be addressed by the ld. Commissioner (Appeals) by recording the points related to short payment of service tax and the penalty. Consequently, the Tribunal set aside the Order-in-Appeal concerning the confirmation of short payment of service tax and the imposition of penalty, remitting the matter back to the ld. Commissioner (Appeals) for fresh consideration. The Appellant was directed to cooperate with the hearing process, ensuring a reasonable opportunity for a hearing.

Conclusion: The Tribunal disposed of the Appeal by remitting the unresolved issues back to the ld. Commissioner (Appeals) for reevaluation. The Appellant was instructed to participate in the hearing process, emphasizing the need for a fair opportunity for both parties. The Stay Petition was also disposed of in accordance with the decision.