2019 (11) TMI 19 - AT - Service Tax

CENVAT Credit - inputs - M.S. Angles/Channels/G.P. Coils/Beams etc., which were used for fabrication/ erection of structures on which hoarding boards are installed - case of the department is that the appellant are not entitled for the Cenvat credit in respect of said steel goods - Board Circular No. 13/90-CX.1 dated 18.04.1990, 53/2/98-CX dated 02.04.1998 and 58/1/2002-CX dated 15.01.2002 - Time limitation - HELD THAT - The issue of admissibility of Cenvat credit of in any case is a mixed question of law and facts which can be decided only on the basis of use of goods. Therefore, since there is so much development taken place after passing the adjudication order, the Adjudicating Authority must reconsider the entire case in view of the facts of this case and considering various judgments passed by various High Courts. Therefore, we are of the considered view that in assessee s appeal, matter should go back to the Adjudicating Authority. The Revenue s appeal seeking setting aside the dropping of demand of ₹ 57,94,280/- on the ground of time-barred, the Adjudicating Authority dropped the said demand holding that in respect of such demand, there is no suppression of facts. It is clear that CERA Audit has conducted audit of records of the appellant including the Cenvat credit record and no objection was raised. Therefore, there is absolutely no suppression of facts on the part of the appellant - Adjudicating Authority has rightly set-aside the demand for the extended period for which the audit was conducted. Appeal allowed by way of remand.

Summary

Issues:
Entitlement of Cenvat credit on steel items, Admissibility of Cenvat credit, Contrary judgments on Cenvat credit, Setting aside the dropping of demand on the ground of time-barred.

Entitlement of Cenvat credit on steel items:
The case involved the appellant engaged in providing taxable Advertising Services using fabricated hoarding boards. The appellant claimed Cenvat credit for steel items used in fabrication, but the department denied the credit citing rules and circulars. The Adjudicating Authority relied on precedents and confirmed a demand for Cenvat credit. The appellant argued citing various judgments that supported the admissibility of the credit. The Tribunal noted conflicting judgments post the adjudication order and concluded that the issue required reconsideration based on evolving legal interpretations and facts specific to the case.

Admissibility of Cenvat credit:
The Tribunal observed that the issue of Cenvat credit admissibility for steel items was complex, involving mixed questions of law and facts. They highlighted contradictory judgments, including decisions from the Gujarat High Court and the Bombay High Court. The Tribunal emphasized the need for a thorough review by the Adjudicating Authority in light of subsequent legal developments and varied High Court decisions.

Contrary judgments on Cenvat credit:
The Tribunal acknowledged conflicting judgments post the initial adjudication order. They referenced decisions from the Hon'ble Chhattisgarh High Court, the Hon'ble Gujarat High Court, and the Hon'ble Delhi High Court, which presented differing views on the admissibility of Cenvat credit for similar cases. Due to these contradictory legal interpretations, the Tribunal recommended a reassessment by the Adjudicating Authority considering the evolving legal landscape.

Setting aside the dropping of demand on the ground of time-barred:
Regarding the Revenue's appeal to set aside the dropping of a demand due to being time-barred, the Tribunal upheld the Adjudicating Authority's decision. They noted that no suppression of facts was found during the CERA audit, leading to the dismissal of the demand. The Tribunal concurred with the findings that there was no basis for alleging suppression of facts until March 2007, resulting in the dismissal of the Revenue's appeal and the remand of the assessee's appeal to the Adjudicating Authority for further consideration.