9911796707
TMI Blog2008 (9) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ICAL MEMBER K.S. Venkatagiri for the Appellant. V.V. Hariharan for the Respondent. [Order per : P.G. Chacko, Judicial Member.]. - After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal. 2. The appeal is against the Commissioner's order passed in adjudication of three show-cause notices. SCN dated 12-10-2006 demanded service tax of Rs. 7,64,38,858 from the appellants under the proviso to section 73(1) of the Finance Act, 1994 for the period April 2005 to March 2006 with interest thereon under section 75 of the Act and had also proposed penalty under section 78 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing taxable services and used the credit of the tax paid thereon, (c) has maintained separate accounts for common input services used in taxable and exempted services and availed credit up to 20 per cent of the tax payable, and (d) has taken credit of duty on capital goods and utilized such credits as per the rules." Without prejudice to the above submissions, the party also contested the demand of interest and the proposal for penalty. The noticee, in their reply to the above SCN, reiterated their case and summed-up their case in the same manner as above. In reply to the SCN, the appellants also filed statements showing month-wise availment and utilization of input service/capital goods credit, as annexures to their replies. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 898598 30437184 0 10. Jan.'06 34418360 27534688 24025377 3509311 11. Feb.'06 25008205 20006564 1305685 18700879 12. Mar.'06 34081741 27265393 24292302 2973091 3. After referring to the allegations in the SCN as well as the observations and findings of the Commissioner, the ld. counsel submits that the adjudicating authority did not apply its mind to the dispute which arose between the appellants and the department. It is submitted that the ld. Commissioner, after giving go-by to the case made out by the department in the SCNs and the case made out by the appellants in reply thereto, arbitrarily arrived at a finding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.14,04,591 3,05,93,140 7,18,25,101 5. International Payments [6(3)] 0 1,42,35,051 1,73,75,151 3,16,10,202 TOTAL 5,63,51,055 7,29,49,377 9,12,91,257 22,05,91,689 Input service credit not taken 1,82,073 2,11,806 6,99,921 10,93,800 'Including opening balance of Rs. 62,78,919 A similar tabular statement of CENVAT credit utilized for the above period has also been provided by counsel, who submits that this information, month-wise, was also given to the Commissioner. This tabular statement is given below:- Sl. No. Credit Description April '05 to Sep.'05 Oct.'05 to Mar.'06 Apr.'06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the assessee was sidestepped. In the impugned order, the ld. Commissioner appears to have oversimplified the scope of the dispute by taking the view that it was a case of excess utilization of Cenvat credit to the extent of over Rs. 7.5 crores by the assessee vis-a-vis the benefit permitted under rule 6(3) pertaining to common input services alone. The only remedy to such non-application of mind is an open remand of the case. As regards the circular and case law cited before us, we observe that the same are liable to be examined by the adjudicating authority in de novo proceedings. Accordingly, we set aside the impugned order and allow this appeal by way of remand, with a direction to the ld. Commissioner to adjudicate the dispute afr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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