2019 (1) TMI 1042 - AT - Service Tax

Penalty u/s 78 of FA - non-payment of service tax - management, maintenance and repair service - erection, commissioning and installation service - CENVAT credit - Held that - Insufficiency of credit may, at a stretch, be ground for ordering recovery of non-appropriated portion of confirmed amount. It is beyond the sanction of law to decide on availment of CENVAT credit without a notice, proposing to deny and without disclosing intent to order recovery, based on the facts available at the time of issue. That which is beyond the competence of the original authority is not amenable to appellate jurisdiction on the merit of liability. Penalty u/s 78 - Held that - From the manner in which the adjudicating authority has arrived at its conclusions, we are unable to ascertain if the ingredients of section 78 are apparent in the matter of inadequacy of credit or in the failure to discharge service tax upon the rendering of the taxable service - The grounds of appeal appear to focus on the legality and propriety of the course of action adopted by appellant and in the plea for relief it is claimed that interpretation of rule 3(4) of CENVAT Credit Rules, 2004 erases the scope for invoking the provision - penalty not warranted. We set aside the impugned order to enable fresh adjudication. We also adjure the original authority to restrict the proceedings to the show cause notice - appeal allowed by way of remand.

Summary

Issues:
1. Imposition of penalty under section 78 of Finance Act, 1994.
2. Denial of CENVAT credit availed by the appellant.
3. Liability to be imposed with penalty under section 78 of Finance Act, 1994.

Imposition of Penalty under Section 78:
The judgment addresses the dispute regarding the imposition of a penalty under section 78 of the Finance Act, 1994. The appellant, a service provider, failed to discharge tax liabilities for certain years. The adjudicating authority initiated proceedings for recovery of tax, interest, and penalty. However, the judgment criticizes the authority for complicating the matter by misinterpreting rules and denying the appellant's right to avail CENVAT credit for discharging liabilities. The circular issued by the Central Board of Excise & Customs clarified that using CENVAT credit for arrears is permissible. The judgment highlights that the authority erred in disallowing the credit without proper investigation or notice, leading to confusion and unfair treatment of the appellant. The tribunal sets aside the order for fresh adjudication, emphasizing the need to adhere to the show cause notice and limit proceedings accordingly.

Denial of CENVAT Credit:
The appellant contested the denial of CENVAT credit availed by them, primarily challenging the authority's decision. The judgment notes that the authority exceeded its jurisdiction by ruling on the credit availed without proper notice or intent to order recovery. It emphasizes that deciding on the credit's eligibility without due process is beyond the authority's competence and not subject to appellate jurisdiction based on liability. The tribunal stresses the importance of following legal procedures and ensuring that decisions are within the scope of the authority's powers. The appellant's grounds of appeal centered on the denial of CENVAT credit, highlighting the need for a fair and lawful assessment of the situation.

Liability to be Imposed with Penalty under Section 78:
The judgment also deliberates on whether the appellant should be penalized under section 78 of the Finance Act, 1994. It raises concerns about the authority's reasoning behind the penalty imposition, questioning if the requirements of section 78 were met regarding credit inadequacy or failure to discharge service tax. The confusion surrounding the interpretation of rules and the course of action adopted by the appellant adds complexity to the decision-making process. The tribunal acknowledges the undisputed tax liability but emphasizes the need for a clear assessment of penalty imposition based on legal provisions. The judgment calls for a reassessment of the penalty issue, urging a fresh adjudication process to address the confusion and ensure a fair outcome for the appellant.

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