2015 (6) TMI 305 - AT - Service Tax

Denial of CENVAT Credit - Board s Circular No.354/148/09 dated 16/7/09 - Held that - Cenvat credit was sought to be denied by the show cause notice in respect of consultancy services received from foreign service provider s on the ground that the appellant as the service recipient had paid service tax on these services under section 66 A of the Finance Act 1994, while the Cenvat Credit Rules, 2004 do not permit the cenvat credit of service tax paid by a service recipient under section 66 A. - Commissioner has not discussed at all as to how the consultancy services received from foreign service providers are not covered by the definition of input service . In respect of the other services received by the appellant from various domestic service providers he has not discussed at all the Board s Circular No.943/4/2011cited by the Counsel for the appellant on the ground that he could not locate the circular on CBEC Website. He has not even discussed the question of admissibility of cenvat credit in respect of these services on merit. While a responsible Adjudicating Officer while deciding an issue is expected not to blindly rely upon Board s Circular, he is expected to examine the issue independently on merits. We have no hesitation in observing that the order passed by the Commissioner is an irresponsible order which is not expected from a senior officer of the rank of Commissioner. The impugned order is set aside. The matter is remanded to the Commissioner for de-novo adjudication. - Decided in favour of assessee.

Summary

Issues:
Dispute over denial of cenvat credit for various services received by the appellant, including consultancy services from foreign providers, business support services, repair and maintenance services, and others. Commissioner's non-speaking order, waiver of pre-deposit requirement, and final disposal of appeals.

Analysis:
The judgment involves a dispute regarding the denial of cenvat credit to the appellant for various services received, spanning from consultancy services from foreign providers to business support services, repair and maintenance services, and more. The Commissioner had issued two show cause notices denying a total service tax of Rs. 23,68,01,071, confirming the cenvat credit demand, and imposing penalties on the appellant company and an individual. However, the Commissioner's order was deemed non-speaking by the Bench, prompting the waiver of the pre-deposit requirement and the decision to hear the appeals for final disposal.

In the detailed analysis, the appellant's counsel argued that the Commissioner failed to discuss the grounds for denial of cenvat credit for most of the services in question, focusing only on consultancy services from foreign providers. The counsel contended that the denial was based on incorrect grounds, such as the payment of service tax under Section 66 A of the Finance Act, which the Cenvat Credit Rules do not prohibit. Moreover, the Commissioner's order lacked discussion on the applicability of input services definition and failed to address the Board's Circular that supported the appellant's position. The JCDR also acknowledged the order's deficiencies as non-speaking.

Upon reviewing the submissions and records, the Tribunal found the Commissioner's order lacking in proper analysis and discussion. While the Commissioner referenced a Board's Circular regarding the admissibility of cenvat credit for services received from foreign providers, there was no detailed examination of how the consultancy services fell outside the definition of 'input service.' Additionally, the order did not address the applicability of cenvat credit for services received from domestic providers or consider the merits of the case. The Tribunal criticized the Commissioner's irresponsible handling of the matter and set aside the order, remanding the case for de-novo adjudication. Consequently, the appeals and stay applications were disposed of accordingly, with a directive to inform the Chairman of the CBEC about the decision.