Custom, Excise & Service Tax Tribunal
Theme Engineering Services Pvt Ltd vs Jaipur-I on 16 August, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
COURT -III
Date of Hearing.10.08.2018
Date of Decision.16.08.2018
Appeal No. ST/51415/2018-SMC
[Arising out of Order-in-Appeal No. OIA-32-NG-ST-JPR-2018 dated 08/02/2018
passed by the COMMISSIONER OF CGST & CENTRAL EXCISE-JAIPUR-I
(Appeal)]
THEME ENGINEERING SERVICES PVT LTD ...Appellant
Vs.
C.C.E. & S.T.-JAIPUR-I ... Respondent
Appearance Present for the Appellant : Mr. M. M. Pal, CA.
Present for the Respondent : Mr. H.C. Saini, DR.
Coram:
HON'BLE MR. AJAY SHARMA, MEMBER (JUDICIAL) FINAL ORDER NO._52775/2018__ PER: Ajay Sharma The present appeal has been filed by the appellant from the impugned order dated 8.2.2018 passed by the Commissioner of CGST & Central Excise-
Jaipur-I (Appeal).
2. The issue involved in this Appeal is whether the appellant was required to pay 6% of amount of value of exempted goods cleared by them as they did not maintain separate record for input services?
3. The ld. consultant for the Appellant raised a preliminary issue that the period in dispute is April, 2012 to September, 2013 and that the Appellant have communicated the option under Rule 6(3)(ii) of the Cenvat Credit Rules to the department on 2.4.2012 but the same has not been considered by the 2 | ST/51415/2018-SMC department and therefore the department has erred in issuing the show cause notice dated 23.5.2015 after invoking the extended period of limitation on the ground that the appellant have not paid service tax amounting to Rs.2,13,800/- during the period from April, 2012 to September, 2013 and that although they had provided services in Jammu & Kashmir State, which was exempted from service tax but did not reverse the Cenvat Credit as required under Rule 6(3) of Cenvat Credit Rules, 2004 nor file any intimation in writing with the Department for excercising the option available under Rule 6 (3) of CCR, 2004 towards non-maintenance of separate records as envisaged under Rule 6 (2) of CCR, 2004. The ld. AR appearing for the department reiterated the findings recorded in the impugned order and prayed for the dismissal of Appeal.
4. I have heard ld. Consultant for the Appellant and ld. AR for the department and have also perused the record. Admittedly the Appellant have not maintained the separate accounts. But Rule 6(3) of Cenvat Credit Rules, 2004 permits the manufacturer or provider of output services, who opted not to maintain separate records, to choose any one of the options provided under the said sub-rule. In this case prima facie it appears that the appellant has opted for option given under Rule 6(3)(ii) of the Cenvat Credit Rules, 2004 and had given the intimation to the department vide communication dated 2.4.2012 and the said letter, which has been produced by the appellant before the adjudicating authority, had the stamp of the department also in lieu of acknowledgment, but still the adjudicating authority did not rely upon the said communication and recorded as under:-
18. Moreover, the said intimation is not available with the range office and is not a part of office records. To check the authenticity of assessee's claims, entry in the "letter receipt 3 | ST/51415/2018-SMC register" maintained in this office was verified. There was no entry of the claimed intimation letter in the letter receipt register on 02.04.2012, which proves that the intimation was not provided to this office.
19. What is more grave is that fact that during personal hearing on 27.01.2016, the assessee provided a forged/fake letter with stamp of this office dated 02.04.2012. The document is not authentic. Therefore, it is proved beyond doubt that the assessee not only suppressed facts and availed wrong Cenvat credit, but also went a step further to distort facts and availed wrong Cenvat credit, but also went a step further to distort facts and cheat the government during the course of investigation. Malafide intention of the assessee is proved by the fact that they submitted a false letter to misguide the adjudicating authority.
5. The Appellant has challenged the aforesaid finding of the adjudicating authority in their Appeal before the ld. Commissioner (Appeals) alongwith other grounds and the said ground has been extracted by the ld. Commissioner (Appeals) in the impugned order in paragraph 3, but there is no finding on the said issue in the impugned order.
6. According to me the preliminary issue raised by the Appellant is very relevant and has a bearing on the matter since the entire case of the department is revolving around not communicating the option by the Appellant to the department as per Rule 6 of Cenvat Credit Rules, 2004 and therefore in the peculiar facts of this case, I allow the Appeal filed by the Appellant by way of remand to the First Appellate Authority with direction to decide the issue, without being influenced by any observation made in this order, as to whether the appellant has communicated the option to the department as required under the Cenvat Credit Rules, 2004 which according to the appellant they have communicated vide communication dated 2.4.2012 4 | ST/51415/2018-SMC . Needless to mention that a reasonable opportunity of hearing be granted to the appellants. Both sides are at liberty to produce evidences in their favour.
7. The appeal is therefore allowed by way of remand.
(Order pronounced in the open court on _16/08/2018_) (Ajay Sharma) Member (Judicial) (V.Rekha