2010 (7) TMI 109 - AT - Service Tax

Cenvat credit on inputs and input services- The respondent is a manufacturer of pesticides and they are availing Cenvat credit on inputs and input services. Show cause notice was issued alleging that part of the sand was sold by the respondents as such to M/s. Punjab Chemicals and Crop Protection Ltd. and in view of the same, the credit taken on input services associated with procurement of the sand was not eligible. The Commissioner (Appeals) has set aside the order of the original authority. Held that- as the Commissioner (appeals) not consider the submission made by the authority thus remand back the matter.

Summary

Issues:
Appeal against order confirming demand of duty and penalty on availing Cenvat credit for non-dutiable inputs and input services.

Analysis:
The judgment involves an appeal by the department against an order confirming demand of duty and penalty on availing Cenvat credit for non-dutiable inputs and input services. The respondent, a manufacturer of pesticides, availed Cenvat credit on inputs and input services, including river sand and goods transport agency services. The department alleged that part of the sand was sold to another company, rendering the credit on input services associated with the sand procurement ineligible. The original authority confirmed the demand and penalty, which was set aside by the Commissioner (Appeals).

During the hearing, the department reiterated its grounds of appeal, emphasizing that the sand was diverted for sale, while the respondent contended that the sand was used in their factory or in job work for another company. The respondent argued that the sand was not sold as alleged by the original authority but was entirely used in their manufacturing processes or job work. The Tribunal observed that the submission regarding the use of sand in job work was raised for the first time before the Commissioner (Appeals) and was not considered by the original authority.

After careful consideration of submissions from both sides and perusal of records, the Tribunal found that the Commissioner (Appeals) did not ascertain the views of the original authority before accepting the respondent's claim. Therefore, the Tribunal set aside the orders of both the Commissioner (Appeals) and the original authority. The matter was remanded to the original authority for fresh consideration, taking into account the respondent's submissions and providing a reasonable opportunity for a hearing.

In conclusion, the appeal was allowed by way of remand, with the Tribunal directing the original authority to reconsider the matter in light of the respondent's contentions regarding the use of river sand in job work, ensuring a fair opportunity for both parties to present their case.