Custom, Excise & Service Tax Tribunal
M/S. Golf Links Software Park Pvt. Ltd vs Commissioner Of Service Tax ... on 24 December, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 22392 / 2014 Application(s) Involved: ST/Stay/21891/2014 in ST/21701/2014-SM Appeal(s) Involved: ST/21701/2014-SM [Arising out of Order-in-Appeal No.166/2014 dated 20/02/2014 passed by Commissioner of Central Excise and Service Tax , BANGALORE-II( Appeal) ] M/s. Golf Links Software Park Pvt. Ltd 150, Embassy Point, Infantry Road BANGALORE 560 001. KARNATAKA Appellant(s) Versus Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Mr. S.SIVAKUMAR ADV #1/1, 7TH MAIN, 2ND STAGE, INDIRANAGAR, BANGALORE-560 038 For the Appellant Mr. S. Teli, Dy. Commissioner (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 24/12/2014 Date of Decision: 24/12/2014 Order Per : B.S.V.MURTHY During the course of audit of the appellants records, the following observations were made:
(a) Appellants availed credit of Rs.5,50,000/- based on the debit note dated 26.4.2007 issued by M/s. Imperial Alliance Finance Service, Mumbai, for arranging a loan.
(b) The appellants availed CENVAT credit of Rs.1,00,363/- twice on the Invoice No.B10/TSJ/76/2006.
(c) They availed CENVAT credit of Rs.4,40,051/- on the basis of photocopies of invoice and failed to produce the original copy of invoices. Thereby credit availed is on invalid documents.
(d) The appellants failed to submit the ST-3 returns for the half year period from April 2004 to March 2009 on the due dates. Thus, there was a delay in filing the ST-3 returns.
2. Heard both the sides.
3.1 On the first issue, the learned counsel submitted that the Commissioner (A) has remanded the matter and allowed the credit subject to verification of original documents and therefore he is not in appeal against this decision.
3.2 As regards the second issue relating to availment of CENVAT credit, the entire amount has been paid with interest. The learned counsel submits that the credit was availed twice and was a clerical mistake and the only ground for imposition of penalty by the learned Commissioner is the observation that appellant has not provided proof of deposit of CENVAT credit with interest. He submits that proof had been produced and is available. It can be said that prima facie appellant has made out a case for waiver in respect of this amount.
3.3 As regards the third issue, he submits that the audit was taken up after a number of years and by the time show-cause notice was issued, it was already four years. It is not that credit had been taken on the basis of photocopy. It is his submission that credit was taken on the basis of original only and the documents had been produced before the auditors. He submits that documents might have been misplaced during the course of movement of documents and therefore credit may be allowed. He relies upon two decisions in the case of Hira Steel Ltd.: 2011 (273) E.L.T. 370 (Chhasttisgarh-HC) and Steeco Gujarat Ltd.: 2010 (255) E.L.T. 518 (Guj.-HC). I find that in both the cases relied upon by the learned counsel, credit was allowed on the ground that the documents had been attested by the Central Excise officers and in this case, this is not the situation. Nevertheless, the learned counsel submits that they are still making efforts to trace the original documents and they may be able to find out if time is given and matter may be remanded to the original authority to show that appellants gets another opportunity to produce the documents. Learned AR has no objection.
3.4 As regards the fourth issue, it relates to late submission of ST-3 returns. The Commissioner has observed that appellants have paid the late fee but payment particulars have not been produced. Since I have decided to remand the matter to the original authority, the payment particulars also may be produced before him so that he verifies the same.
4. In view of the above observations, the impugned order is set aside at this stage itself and the matter is remanded to the original adjudicating authority for fresh adjudication.
(Operative portion of the order has been pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER rv 3