2019 (1) TMI 565 - AT - Service Tax

Correctness of the credit availed - Verification of the records - the closing balance and the opening balance in March 2010 and April 2010 were said to be incorrect vis- -vis the information submitted in their respective ST-3 returns - Held that - On going through the photographs and other evidences, prima facie we are satisfied that the appellant had carried the documents for scrutiny, but the department failed to carry out the scrutiny and the order was passed - Matter remanded to the adjudicating authority to scrutinize the documents either on sample basis or following any other method to ascertain the correctness of the credit availed by the appellant - appeal allowed by way of remand.

Summary

Issues:
Verification of records to ascertain correctness of credit availed during relevant period.

Analysis:
The appeal was filed against an order-in-original passed by the Commissioner of Service Tax-VII, Mumbai, regarding the incorrect availing of cenvat credit. In a previous round of litigation, the Tribunal remanded the matter to the adjudicating authority for verification of records. The appellant contended that they had produced necessary evidence, including C.A. certificates, indicating errors in maintaining accounts. Despite carrying all records for scrutiny as directed, the order was passed without scrutiny. The Tribunal found merit in the appellant's contention, set aside the order, and remanded the matter to the adjudicating authority for proper scrutiny of documents to determine the correctness of credit availed. The appellant was directed to provide all records within six weeks for scrutiny, with a reasonable opportunity of hearing to be granted.

During the hearing, the Bench directed the learned AR to obtain a report from the Commissionerate, but no categorical information was provided regarding the storage of records for scrutiny. The short issue involved in the appeal was the verification of records to determine the correctness of credit availed by the appellant. The Tribunal noted discrepancies in the opening and closing balances of credit and the information in ST-3 returns. It was observed that the appellant had carried the documents for scrutiny, but the department failed to conduct the scrutiny before passing the order. Based on evidence presented, the Tribunal allowed the appeal by remanding the matter to the adjudicating authority for proper verification of records, either on a sample basis or using another method. The appellant was instructed to submit all records for scrutiny within six weeks, with a provision for a reasonable opportunity of hearing.