2015 (3) TMI 526 - AT - Service Tax

Waiver of pre deposit - appellants availed CENVAT credit twice on the Invoice - availment of CENVAT credit on the basis of photocopies of invoice and failed to produce the original copy of invoices - failure to submit the ST-3 returns for the half year period - Held that - As regards the issue relating to availment of CENVAT credit, the entire amount has been paid with interest. The learned counsel submits that the credit was availed twice and was a clerical mistake and the only ground for imposition of penalty by the learned Commissioner is the observation that appellant has not provided proof of deposit of CENVAT credit with interest. He submits that proof had been produced and is available. It can be said that prima facie appellant has made out a case for waiver in respect of this amount. As regards non submission of Originals - counsel submits that they are still making efforts to trace the original documents and they may be able to find out if time is given and matter may be remanded to the original authority to show that appellants gets another opportunity to produce the documents. As regards the issue, it relates to late submission of ST-3 returns. The Commissioner has observed that appellants have paid the late fee but payment particulars have not been produced. Since I have decided to remand the matter to the original authority, the payment particulars also may be produced before him so that he verifies the same. - Matters remanded back - Decided in favour of assessee.

Summary

Issues:
1. Availment of credit based on invalid documents
2. Availment of CENVAT credit twice
3. Failure to submit ST-3 returns on time

Analysis:

Issue 1: Availment of credit based on invalid documents
The appellant availed credit based on a debit note from a finance service, photocopies of invoices, and failed to produce original invoices. The counsel argued that credit was taken on the basis of original documents, which might have been misplaced. The appellant sought time to trace the original documents. The counsel relied on previous cases where credit was allowed based on attested documents. The Tribunal decided to remand the matter to the original authority for fresh adjudication, allowing the appellant another opportunity to produce the original documents.

Issue 2: Availment of CENVAT credit twice
The appellant availed CENVAT credit twice on the same invoice, which was considered a clerical mistake. The counsel contended that the entire amount was paid with interest, and proof of deposit was available. The Tribunal acknowledged the prima facie case for waiver of penalty and decided to remand the matter for further verification by the original authority.

Issue 3: Failure to submit ST-3 returns on time
The appellant failed to submit ST-3 returns for a specific period on time, leading to a delay. The Commissioner observed that late fees were paid but requested proof of payment particulars. The Tribunal directed the appellant to produce payment particulars before the original authority for verification, as the matter was remanded for fresh adjudication.

In conclusion, the Tribunal set aside the impugned order and remanded the case to the original adjudicating authority for a fresh decision, considering the arguments presented by the appellant's counsel and the need for further verification of documents and payments.