2024 (3) TMI 13 - AT - Service Tax

Adjustment of Cenvat credit against the total tax liability of the same period - While demanding the service tax, the availability of the Cenvat credit was ignored - HELD THAT - If it is found that during the relevant period of liability of the service tax, on the basis of documents if the Cenvat credit is available the same needs to be adjusted against the total service tax liability. This aspect can be verified from the input/input service invoice and books of account of the appellant. Accordingly, in case of availability of Cenvat credit the same needs to be extended for adjustment against the total service tax liability. However, this issue on factual matrix needs to be verified. Matter remanded to the adjudicating authority for passing a fresh order - Appeal is allowed by way of remand to the adjudicating authority.

Summary

Issues:
The judgment involves the consideration of whether the available Cenvat credit should be allowed for adjustment against the total tax liability at the relevant time.

Analysis:
The appellant, represented by Shri Saurabh Dixit, did not contest the levy of service tax but argued that they had paid the service tax in cash only for the difference between the total tax liability and the Cenvat credit available to them. It was contended that the department overlooked the Cenvat credit while demanding the service tax. The appellant had not declared the Cenvat credit in their ST-3 return but maintained that the credit was available and should be adjusted against the service tax liability. The appellant's position was supported by various judgments, including ONGC Ltd, Ad Vision, Park Digital Colour Lab, Pudhari Publication P. Ltd, and Corner Point Infrastructure P. Ltd. On the other hand, Shri P. Ganesan, representing the Revenue, reiterated the findings of the impugned order.

Upon careful consideration of the submissions from both sides and examination of the records, the Tribunal found that the key issue was whether the available Cenvat credit should be allowed for adjustment against the total tax liability during the relevant period. The Tribunal opined that if, based on documents, the Cenvat credit was available during the period of service tax liability, it should be adjusted against the total service tax liability. This adjustment could be verified from the input/input service invoice and the appellant's books of account. The Tribunal agreed with the appellant's argument and the judgments cited, stating that the Cenvat credit should be extended for adjustment against the service tax liability. However, due to the need for verification on the factual matrix, the Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for a fresh decision in line with their observations.

Decision:
The appeal was allowed by way of remand to the adjudicating authority for a fresh order considering the Tribunal's observations. The judgment was pronounced in the open court on 28.02.2024.