2019 (3) TMI 46 - AT - Service Tax

Adjustment of CENVAT credit in respect of service tax paid to the intermediary MSO who were supplying the signals and link to them - Held that - The said request is tenable since the appellant would be eligible for CENVAT credit of the service tax paid to the MSO. However, the appellant has to furnish documentary evidence to show that they have paid the service tax to the MSO. For this purpose, we remand the matter to the adjudicating authority who shall look into the plea of adjustment of CENVAT credit for the amount that has to be paid by the appellant. The matter is remanded to the adjudicating authority for the limited purpose of granting the benefit of CENVAT credit on the basis of the documents furnished by the appellant - The penalties are set aside in toto - appeal is partly allowed by way of remand.

Summary

Issues:
Underpayment of service tax by cable operator service provider, confirmation of demand by original authority, imposition of penalties under sections 77 and 78 of the Finance Act, 1994, eligibility for CENVAT credit, remand to original authority for evidence submission, contesting penalties imposed.

Analysis:
The judgment pertains to an appeal by a cable operator service provider regarding the underpayment of service tax compared to the amount paid to the Multi-System Operator (MSO). The original authority confirmed a demand of ?3,04,484 along with interest and imposed penalties under sections 77 and 78 of the Finance Act, 1994 for the period August 2002 to September 2005. The Commissioner (Appeals) upheld this decision, leading to the current appeal.

During the appeal, the appellant accepted the liability but contested the quantification of the demand. The appellant sought CENVAT credit for the amount paid to the MSO providing signals and links. The consultant requested a remand to the original authority to present evidence supporting the eligibility for CENVAT credit and urged to set aside the penalties, stating partial payment of the demand.

The Assistant Commissioner supported the findings, emphasizing the lack of evidence regarding the amount collected and service tax payment by the appellant. The Tribunal considered the appellant's request for CENVAT credit valid, subject to furnishing proof of service tax payment to the MSO. The matter was remanded to the adjudicating authority for this purpose.

Regarding penalties, the consultant argued that non-payment was due to customer non-payment and potential CENVAT credit eligibility. The Tribunal agreed, deeming the penalties unwarranted and set them aside. Consequently, the matter was remanded for CENVAT credit consideration based on evidence and penalties were annulled.

In conclusion, the Tribunal remanded the case to the adjudicating authority for CENVAT credit assessment based on provided documents, while nullifying the penalties entirely. The appeal was partially allowed with consequential relief as per law, concluding the judgment.