2019 (3) TMI 819 - AT - Service Tax

Tribunal remands case, stresses CENVAT credit eligibility. Penalties waived if CENVAT paid pre-show-cause notice.

M/s New Mangalore Port Trust Versus C.E,S. T-Commissioner Of Central Excise & Central Tax, Mangalore Commissionerate

The Tribunal allowed the appeal by remanding the case for a fresh adjudication on all input services, except Rent-a-Cab, where CENVAT was paid and ... CENVAT Credit - input services - Rent a Cab services - Insurance of Vehicles - Section 73(3) of the Finance Act, 1994 - Held that:- Once the appellant has paid the CENVAT of ₹ 34,02,602/- and interest of ₹ 5,85,931/- towards Rent-a-Cab service and other services, the Revenue should not have issued the SCN as there was no suppression of fact with intent to evade payment of Service Tax. Therefore, the imposition of penalty equal to the CENVAT credit of ₹ 34,02,602/- along with interest of ₹ 5,85,931/- which is paid before the issue of SCN is set aside. Other input services - Held that:- The adjudicating authority has only considered three service viz. Works Contract, Electrical Works and Hiring of Tugs for decision on their eligibility for CENVAT credit. Further, the original authority have not considered the material furnished by the appellant to prove that the said services fall in the definition of ‘input service’. Pest control services - Advertising service - Event Management service - Electrical Works - Erection, Commissioning and Installation of DG Set service - Held that:- The Commissioner (A) has merely confirmed the Order-in-Original without considering the submissions of the appellant and the various case laws relied upon by the appellant in support of their submission. In view of all these, this case needs to be remanded back to the original authority for passing a de novo order with regard to all the services except Rent-a-Cab service which is not being contested and CENVAT has been paid by the appellant - the appeal is allowed by way of remand to the original authority with direction to pass a de novo order after considering all the submissions of the appellant. Appeal allowed by way of remand. Issues:- Eligibility of CENVAT credit on various input services- Appropriation of CENVAT credit already paid- Imposition of penalty under Rule 15(3) of CCR, 2004- Consideration of all input services in the adjudication processEligibility of CENVAT credit on various input services:The appellant availed CENVAT credit on services such as Rent a Cab and Insurance of Vehicles, which were deemed ineligible. A show-cause notice was issued demanding CENVAT credit repayment along with interest and penalty. The Additional Commissioner confirmed the demand, imposing penalties and appropriating credits. The appellant contested the order, arguing that the impugned order failed to appreciate facts and legal precedents properly. The Counsel highlighted that the order did not consider all input services' eligibility for CENVAT credit. The Tribunal found merit in the appellant's argument, noting that the original authority failed to assess all services falling under the definition of 'input service.' Consequently, the case was remanded back for a fresh adjudication on all services except Rent-a-Cab, where CENVAT was paid and uncontested.Appropriation of CENVAT credit already paid:The appellant had paid CENVAT and interest before the issuance of the show-cause notice, which was appropriated in the adjudication order. The Tribunal held that once the appellant paid the CENVAT and interest, the Revenue should not have issued the notice, as there was no intent to evade payment. Therefore, the imposition of penalty equal to the CENVAT credit already paid was set aside. The Tribunal emphasized that the Revenue should not penalize when there is no suppression of facts to evade tax payment.Imposition of penalty under Rule 15(3) of CCR, 2004:The Tribunal ruled that penalties should not be imposed when the taxpayer has paid the CENVAT and interest before the issuance of the show-cause notice. Citing legal precedents, the Tribunal emphasized that penalties should only be initiated for short payments, not for amounts already paid and intimated to the authorities. The Tribunal's decision was based on the principles outlined in Section 73(3) of the Finance Act, 1994, and Section 11A (2A) of the Central Excise Act, 1944.Consideration of all input services in the adjudication process:The Tribunal found that the adjudicating authority only considered the eligibility of three services for CENVAT credit, overlooking other input services. It was noted that there were no findings on services like Pest Control, Advertising, Event Management, Electrical Works, and DG Set installation. The Commissioner's decision was deemed inadequate as it did not address the submissions and legal arguments presented by the appellant. As a result, the case was remanded back to the original authority for a comprehensive reassessment of all services, ensuring due consideration of the appellant's submissions and relevant case laws.In conclusion, the Tribunal allowed the appeal by remanding the case for a fresh adjudication on all input services, except Rent-a-Cab, where CENVAT was paid and uncontested. The decision emphasized the importance of thorough consideration of all input services' eligibility for CENVAT credit and highlighted the need for adherence to legal principles in penalty imposition and adjudication processes.