2021 (11) TMI 991 - AT - Service Tax

Tribunal remands order for reconsideration, citing lack of consideration for appellant's submissions.

The Tribunal set aside the impugned order due to it lacking consideration of the appellant's submissions. The matter was remanded back to the original ... CENVAT Credit - common input services used for providing the taxable services and trading activities - non-maintenance of separate records - Rule 6 (3A) of the CENVAT Credit Rules, 2004 - HELD THAT:- Appellant clearly state that they have provided the records year wise in as per Annexure VII, to that letter to the adjudicating authority. Commissioner in the impugned order do not contradicts the same nor records any finding in respect of the Annexure VII. In fact in the reply submitted by the Appellant then claimed in respect of the calculation errors, in the show cause notice, if these calculation errors while computing the demand are taken into account then major chunk of demand itself cannot survive. However we find that these calculation errors themselves have not been considered and adjudicated by the impugned order. On the examination of the impugned order we can only observe that impugned order cannot be called a speaking order in any manner. Except for the brief discussion in para 6 and 7, in the “Discussion and Findings” recorded by the Commissioner we do not find anything anywhere in the entire order, considering the allegations made in the show cause notice and the submissions made by the appellants while contesting the same. The only reason for the rejection of the claims made by the appellants is that they have not furnished the relevant information. There are no merits in impugned order as it is devoid of any reasoning and is without consideration of the submissions made by the appellant - the matter is remanded back to the original authority for consideration - appeal allowed by way of remand. Issues Involved:1. Incorrect reversal of CENVAT credit under Rule 6(3A) of the CENVAT Credit Rules, 2004.2. Jurisdiction of tax authorities over CENVAT credit distributed by the Input Service Distributor (ISD).3. Validity of audit conducted by officers of the excise department.4. Time-barred nature of the demand for the period 2008-09 and 2011-12.5. Calculation errors in the amount of CENVAT credit availed and reversed.6. Penalties imposed under various sections of the Finance Act, 1994.Detailed Analysis:1. Incorrect Reversal of CENVAT Credit:The appellant argued that they followed the procedure under Rule 6(3A) of the CENVAT Credit Rules, 2004 for reversing the proportionate CENVAT credit pertaining to exempt services (i.e., trading turnover). They maintained that they had intimated the revenue about the reversals made and indicated these in their ST-3 returns. However, the revenue took incorrect figures of CENVAT credit taken during the periods 2008-09 and 2011-12, inflating the demand by Rs. 8,09,06,992. The appellant contended that the CENVAT credit for input services used exclusively in taxable output services should not be included in the reversal ratio, impacting the demand by Rs. 5,52,61,146.2. Jurisdiction of Tax Authorities Over ISD:The appellant claimed that the ISD does not avail the credit on input services and verification regarding availment of the input credit needs to be done on the unit to which the credit has been distributed. They cited CBEC Circular No. 868/6/2008-CX dated 9 May 2008, which clarifies that since ISD does not provide any service, the question of availing either option (1) or option (2) under Rule 6(3) of the Credit Rules does not arise. They also referenced the case of Mahindra & Mahindra Ltd [2017-TIOL-2364- CESTAT-Mumbai], which held that the role of ISD is restricted to receiving and distributing the input tax credit.3. Validity of Audit Conducted by Officers:The appellant argued that the audit was conducted by officers of the excise department and not by a Chartered Accountant, which is in violation of Rule 5A of the Service Tax Rules, 1994. They cited the Hon'ble Allahabad High Court's decision in ACL Education Centre Private Limited V/s Union of India [2014-TIOL-120-HC ALL-ST], which held that audit must be performed by a Chartered Accountant.4. Time-Barred Nature of the Demand:The appellant contended that the demand for the years 2008-09 and 2011-12 is time-barred as per Section 73(1) of the Finance Act, 1994. They argued that the extended period of limitation could not be invoked as there was no fraud, collusion, misstatement, or suppression with intent to evade payment of service tax. The appellant had duly filed service tax returns and intimated the authorities about the method of ratio adopted for Rule 6(3) and the finalization of ratio and amount reversed under Rule 6(3) at the year-end.5. Calculation Errors:The appellant pointed out several calculation errors in the show cause notices. For instance, the total CENVAT credit availed on input services for FY 2012-13 was incorrectly taken as Rs. 53,93,95,172 instead of Rs. 20,97,82,023. They also argued that the department incorrectly calculated the ratio for reversal of credit by considering the purchase price of the goods instead of the cost of goods sold.6. Penalties Imposed:The Commissioner imposed penalties under various sections of the Finance Act, 1994. The appellant argued that the penalties were not justified as they had followed the procedure under Rule 6(3A) and had disclosed all necessary information in their returns and intimations to the authorities.Conclusion:The Tribunal found that the impugned order was not a speaking order and lacked consideration of the submissions made by the appellant. The Tribunal set aside the impugned order and remanded the matter back to the original authority for reconsideration in light of the submissions made by the appellant. The adjudicating authority was directed to decide the matter within three months, following the principles of natural justice.