2019 (4) TMI 1002 - AT - Service Tax

Scope of SCN - Input services - GTA Services - wrong availment of input credit on the strength of invalid documents/bills issued by the transporter - HELD THAT - The adjudicating authority held that the assessee had resorted to fraudulent means to mutate documents in order to avail ineligible cenvat credit which was not the allegation in the show-cause notice. Accordingly, the adjudicating authority has traversed beyond the scope of show-cause notice - The ground alleged in the show-cause notice and the ground on which the demand has been confirmed, are different and therefore, the order has travelled beyond the show-cause notice - appeal allowed - decided in favor of appellant.

Summary

Issues:
Delay in filing the appeal before the forum, dispute over wrong availment of input service credit on GTA service, validity of the order-in-appeal, applicability of Cenvat Credit Rules, 2004, fraudulent means to avail ineligible cenvat credit, sustainability of the order-in-original.

Analysis:
The judgment pertains to a Miscellaneous Application filed to condone a delay of 20 days in filing an appeal before the forum. The delay was condoned based on the submissions made by the advocate for the applicant and reasons explained in the application. The appeal itself was taken up for final disposal with the consent of both sides since the dispute was in a narrow compass.

The appeal was filed against an Order-in-Appeal that disallowed Cenvat Credit and ordered recovery of the same along with interest and penalty. The appellant, a manufacturer of excisable goods, was alleged to have wrongfully availed input service credit on GTA Service based on invalid bills issued by the transporter. The Adjudicating Authority upheld the disallowance, leading to the appeal before the Tribunal.

The advocate for the appellant argued that as the recipient of GTA service, the appellant was liable to pay service tax and had paid the service tax accordingly. The appellant had taken credit based on challans as per the Cenvat Credit Rules, 2004. The advocate contended that the consignment notes/bills contained all necessary particulars, and certain rules applied to the service provider, not the service receiver.

Upon hearing both sides, the Tribunal found that the show-cause notice alleged wrong availment of input credit based on invalid documents, but the adjudicating authority went beyond the scope of the notice by accusing the assessee of fraudulent means to avail ineligible credit. This deviation rendered the order unsustainable and bad in law. Consequently, the impugned orders were set aside, and the appeal filed by the appellant was allowed.