Custom, Excise & Service Tax Tribunal
M/S. Swastik Crane Services vs Cce, Mysore on 17 January, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing: 17/01/2011
Date of decision:17/01/2011
Appeal No.ST/61/10;
Application No.ST/St/25/10
(Arising out of Order-in-Appeal No.405/2009 dt. 12/10/2009
passed by Commissioner(Appeals), Mangalore)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
Honble Mr. P.Karthikeyan, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Swastik Crane Services
..Appellant(s)
Vs.
CCE, Mysore
..Respondent(s)
Appearance Mr. Rajesh Kumar, Chartered Accountant for the appellant.
Mr. M.M. Ravi Rajendran, JDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) Honble Mr. P.Karthikeyan, Member(Technical) FINAL ORDER No._______________________2011 Per M.V.Ravindran This stay petition is filed for waiver of pre-deposit of the following amounts:-
a. Service Tax Rs.1,28,219/- b. Interest.
c. Penalty Rs.1,28,219/- u/s 78.
2. After hearing both sides for some time on the stay petition, we find that the appeal itself could be disposed off at this juncture. Hence, after dispensing with the condition of pre-deposit, we take up the appeal for disposal.
3. Ld. Chartered Accountant for the appellant submits that the demand has arisen on the ground that the appellant had short paid the service tax. It is his submission that the payments were made good by them by availment of Cenvat Credit on the input services. It is his submission that both the lower authorities have recorded that they have not produced the invoices for the purpose of eligibility to the service tax on the input services.
4. Ld. DR also submits that eligibility to Cenvat Credit on the service tax paid on the input services is based on the invoices, which were not produced before lower authorities.
5. On perusal of the records, we find that appellant may be eligible for the credit of service tax paid on input services to the tune of Rs.1,28,158/- and they have made good the same by taking the Cenvat Credit. Since the eligibility to the Cenvat Credit needs to be verified from the factual matrix, we are of the considered view that the Adjudicating Authority should go into the matter and re-consider the issue afresh. Without expressing any opinion on the merits of case and keeping all the issues open, we set aside the impugned order and remand the matter back to the Adjudicating Authority to re-consider the issue, after following principles of natural justice. Appeal is allowed by way of remand. Stay petition also disposed off.
(Pronounced and dictated in open court) (P.KARTHIKEYAN) MEMBER (TECHNICAL) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 3