2018 (7) TMI 332 - AT - Service Tax

Benefit of SSI Exemption - Irregular availment of CENVAT credit - Principles of natural justice - Held that - The Commissioner (Appeals) by the impugned order observed that the appellants were not entitled to receive the benefit of small scale exemption without refuting the figures as mentioned in the adjudication order - It appears that the Commissioner (Appeals) passed the order without examining the records at length and therefore, such an order cannot sustain in the eye of law - Apparently, the adjudicating authority had given the detailed finding with examination of records and documents which has not been refuted by the department and such order is to be restored. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against Order-in-Appeal disallowing cenvat credit and confirming service tax demand, applicability of section 73(4A) of the Finance Act, 1994, benefit of small scale exemption, examination of records by adjudicating authority and Commissioner (Appeals).

Analysis:
The appeal was filed against the Order-in-Appeal disallowing cenvat credit and confirming the service tax demand along with penalties. The appellant, registered for maintenance or repair services, received a show cause notice proposing a service tax demand and cenvat credit disallowance for the period 2007-08 to 2011-12. The adjudicating authority initially dropped the proceedings, but the Revenue appealed to the Commissioner (Appeals) who disallowed the cenvat credit and confirmed the demand. The appellant contested this decision, leading to the present appeal.

Upon review, it was noted that the show-cause notice highlighted irregularities in cenvat credit availment. The appellant argued that they had paid the necessary interest and penalties, invoking section 73(4A) of the Finance Act, 1994, which waives the requirement of a show cause notice. The adjudicating authority extensively examined the tax payments, ST-3 returns, and cenvat credit utilization, ultimately concluding that the appellant had fulfilled their obligations under the law. The authority detailed the figures for the disputed period, noting the payment of service tax, interest, and penalties. The appellant had also informed the investigating team about the payments and requested a waiver of the show cause notice. Considering these factors and the relevant legal provisions, the adjudicating authority dropped the proceedings, finding in favor of the appellant.

Conversely, the Commissioner (Appeals) disallowed the appellant's claim for the benefit of small scale exemption without adequately challenging the findings and figures presented in the adjudication order. The Commissioner's order lacked a thorough examination of the records, leading to a conclusion that could not be legally sustained. In contrast, the adjudicating authority had meticulously analyzed the records and documents, which went unrefuted by the department. Consequently, the order of the Commissioner (Appeals) was deemed untenable in light of the law, and the decision was made to set it aside, thereby allowing the appellant's appeal.

In conclusion, the impugned order by the Commissioner (Appeals) disallowing cenvat credit and confirming the service tax demand was overturned. The appeal filed by the appellant was successful, highlighting the importance of thorough examination of records and adherence to legal provisions in tax matters.