2019 (7) TMI 153 - AT - Service Tax

CENVAT Credit - inputs/capital goods/input services - SCN was served upon the appellant proposing the recovery of ₹ 2,26,185/- of cenvat credit as was alleged to have been availed wrongly by the appellant - It is submitted by the appellant that prior the impugned show cause notice, another show cause notice being an outcome of the same enquiry about the same amount of Cenvat credit was issued to the appellant bearing No.2165-67 dated 18.10.2012. HELD THAT - The record of the impugned appeal is perused and it is observed that the copy of the order dated 09.05.2016 is with respect to another show cause notice, however, being served to the same assessee, who is appellant herein. The controversy is also same as in the present show cause notice. It is observed that para 18.1 and 18.2 of the said order/ decision dated 09.05.2016 talks about the issue involved in the impugned show cause notice. This acknowledgement makes it clear that the same/identical issue has already been decided in favour of the appellant. Therefore the interest of justice will better be served for this show cause notice to again be adjudicated after considering the order No.2-16-17 dated 09.05.2016. Appeal allowed by way of remand.

Summary

Issues:
- Availment of cenvat credit on inputs, capital goods, and input services by the appellant.
- Rejection of appeal by Order in Appeal No. 121 dated 21 February, 2018.
- Request for remand based on the outcome of a previous show cause notice.
- Adjudication based on the order dated 09.05.2016 favoring the appellant.

Analysis:
The appellant, a service provider for construction services, availed cenvat credit on inputs, capital goods, and input services. A show cause notice was issued proposing the recovery of wrongly availed cenvat credit, along with interest and penalties. The initial proposal was confirmed in the Order-in-Original No.2119 dated 09.04.2012, and the subsequent appeal was rejected in Order in Appeal No. 121 dated 21 February, 2018. The appellant approached the Tribunal challenging these decisions.

During the hearing, it was revealed that a previous show cause notice, similar to the current one, was issued to the appellant. This previous notice was adjudicated in favor of the appellant through an order dated 09.05.2016, which set aside the allegations of wrongly availing cenvat credit. However, this order was not presented before the Commissioner (Appeals) during the challenge under consideration. The appellant requested a remand to present the 09.05.2016 order before the adjudicating authority for a fresh decision, which the Department did not oppose.

Upon reviewing the submissions and the records, it was noted that the issue in the current show cause notice was identical to the one addressed in the order dated 09.05.2016. Considering the previous decision in favor of the appellant, the Tribunal allowed the appeal by remanding the matter back to the adjudicating authority for a fresh adjudication. The direction was to consider the order dated 09.05.2016 and any other relevant evidence provided by the appellant during the process.