Custom, Excise & Service Tax Tribunal
M/S. Bsnl, Saharsa, Bihar vs Commissioner Of Central Excise & ... on 17 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.ST/S/120/2012
AND
SERVICE TAX APPEAL NO.ST/A/60/2012
(ARISING OUT OF ORDER-IN-ORIGINAL NO.17/ST/AYUKT/2011 DATED 21.11.2011 PASSED BY COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, PATNA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities?
M/S. BSNL, SAHARSA, BIHAR
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, PATNA
...RESPONDENT (S)
APPEARANCE:
SHRI A.K.SRIVASTAVA, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI ANIRUDDHA ROY, A.R. (SUPDT.) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:17.6.2014 ORDER NO.FO/A/75383/2014 Per Dr. D.M.Misra This is an Application seeking waiver of predeposit of CENVAT Credit of Rs.62.71 lakh and penalty of Rs.59.57 lakh imposed under Rule 15 of the CENVAT Credit Rules,2004 read with Section 78 of the Central Excise Act, 1944.
2. At the outset, ld. Advocate, Shri A.K.Shrivastava appearing for the Applicant submits that demand, Rs.3.14 lakh(approx..) relates to short payment of service tax and Rs.59.57 lakh(approx..) relates to wrong availment of CENVAT Credit. The ld. Advocate further submits that at the time of adjudication, they could not place all the evidences before the ld. Commissioner and now they are now in possession of almost all the relevant documents, by which they can justify that the CENVAT Credit had been availed by them correctly on the basis of valid documents , barring few instances. Regarding the short payment of Rs.3.14 lakh, he submits that the said payment was relating to adjustment of the excess payment of service tax made for the earlier period. He prays the matter may be remanded to the ld. Commissioner to re-consider all the documents which they are now in possession.
3. Ld. AR for the Revenue submits that the demand has been confirmed against them, as they could not able to relevant documents in support eligibility of CENVAT Credit on various input services during the period, October, 2008 to March, 2010. He further submits that even in the case of the claim of excess payment of service tax, they could not justify the same, by adducing sufficient evidence before the ld. Commissioner. He contends that he has no objection in remanding the matter to the ld. Commissioner for decision on the issues afresh. However, he submits that in remanding the case the Applicant be put into terms.
4. After hearing both sides for some time, we find that the Appeal itself could be disposed off, at this stage. Accordingly, with the consent of both sides, we take up the Appeal for final disposal. We find that the entire issue relates to production of evidences in support of the Appellants claim of correct availment of CENVAT Credit and adjustment of excess payment of Service Tax, before the Adjudicating Authority. The ld. Advocate, Shri Srivastava appearing for the Appellant stated that at the time of adjudication, they could not place the evidences before the ld. Commissioner, and therefore, the demand has been confirmed. He submits that the documents are now available, and fairly accepts that it needs verification by the Adjudicating Authority and prays for remand. Simultaneously, we also agree with the contention of the ld. AR for the Revenue, that the Appellant be put into terms before remanding the matter to the ld. Commissioner for re-consideration of the issue afresh. In the result, we are of the opinion that in the interest of justice direction for deposit Rs.15.00 lakh, at this stage, would be appropriate. Accordingly, we direct the Appellant to deposit Rs.15.00 lakh (Rupees fifteen lakh) within a period of four weeks from today, and report compliance directly to the ld. Commissioner who, after taking into consideration the said deposit, would proceed with the adjudication afresh. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Both sides are at liberty to place evidences in their favour. The Appeal is allowed by way of remand. Stay Petition stands disposed off.
(Pronounced & dictated in the open court.)
SD/-20.06.14 SD/-19.06.14
(I.P.LAL) (D.M.MISRA)
MEMBER(TECHNICAL) MEMBER (JUDICIAL)
DUTTA/
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ST/A/60/2012
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