Custom, Excise & Service Tax Tribunal
My Home Industries Ltd vs Commissioner Of Central Excise, ... on 29 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21818-21819 / 2014 Application(s) Involved: E/Stay/26450/2013, E/Stay/26456/2013 in E/26127/2013-DB, E/26135/2013-DB Appeal(s) Involved: E/26127/2013-DB, E/26135/2013-DB [Arising out of Order-in-Original No.76/2012 dated 30/11/2012 passed by Commissioner of Central Excise, VISAKHAPATNAM-II Commissionerate.] My Home Industries Ltd My Home Hub, Block Iii, 9th Floor, Hi-tec City, Madhapur, HYDERABAD - 500081 AP Appellant(s) Vineet Kapur Director (finance & Commercial) M/s. My Home Industries Ltd, Ho: My Home Hub, Block III, 9th Floor, Hitec City, Madhapur, HYDERABAD - 500081 AP Appellant(s) Versus Commissioner of Central Excise, Service Tax and Customs VISAKHAPATNAM-II NULL CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH Respondent(s)
Appearance:
Mr. Y. Sreenivasa Reddy, Advocate V.J. SANKARAM ADV 7-1-216/4 KUSHBOO SILK SHOWROOM, BALKAMPET, HYDERABAD-16 For the Appellant Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 29/09/2014 Date of Decision: 29/09/2014 Order Per : B.S.V.MURTHY An amount of Rs.2,09,83,951/- has been held to be CENVAT credit availed on construction services which are excluded from the definition of input service and therefore have to be held as wrongly availed. The learned counsel submits that out of the above amount, the appellant has paid an amount of Rs.87,52,111/- with interest before issue of show-cause notice on the construction services availed after 1.4.2011. It is his submission that demand has been confirmed in respect of all the invoices issued after 1.4.2011 whereas the credit denial should have been limited to the services received after 1.4.2011 only. He relies on the Circular No.943/4/2011-CX dated 29.4.2011 wherein it has been clarified at Sl No.12 of the table that Whether credit on such service received before 1.4.2011 would be available and answer has been given as available. He submits that this clarification shows that if the service has been received prior to 1.4.2011, credit would be admissible. Further, he also points out that some invoices are dated prior to 1.4.2011 and even in those cases, credit has been denied. Learned AR submits that no evidence has been produced for verifying as to whether service had been received prior to 1.4.2011 or not.
2. On going through the records, we find from the Order-in-Original that there is no discussion as to the correctness of the claim made by the appellant that the services were received prior to 1.4.2011. When a specific claim like this is made, in our opinion, the learned Commissioner should have considered the issue and called upon the appellants to produce evidence, if required and should have considered all such evidences. Under these circumstances for this substantial portion of the demand, the matter will have to be remanded. The balance amount payable is only Rs.12,64,559/- availed towards consultancy service and this has been denied on the ground that appellant is not eligible. In any case, since in respect of the demand for more than Rs.2 crores we are remanding the issue, we do not consider it appropriate that we should consider this issue in detail. Another appellant Shri Vineet Kapur, Director of the appellant is also seeking waiver of penalty of Rs.25 lakhs imposed on him. Since on the main appellant we are not requiring any pre-deposit to be made for the purpose of remanding, we consider it appropriate that in respect of Shri Vineet Kapur there is no need for any pre-deposit required to be made. Accordingly, the impugned order is set aside and both the appeals are remanded to the original adjudicating authority for fresh adjudication after giving reasonable opportunity to the appellants to present their case and after verifying the evidences that may be produced by the appellants.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3