2012 (5) TMI 469

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....of 'Authorized Service Station' and are accordingly registered under Service Tax. A show-cause notice-cum-demand notice was issued against the respondent for recovery of inadmissible CENVAT credit of Rs. 4,12,611/- on service tax paid towards the services viz. Advertisement, Free Service coupons and RTO registration charges, which are used in or in relation to sale of Motor Vehicle. The demand was confirmed along with interest and the penalty of Rs. 2,000/- was imposed under Rule 15(3) of CENVAT Credit Rules, 2004. The respondent challenged the order of the ld. Commissioner (Appeals) found that the lower adjudicating authority has not appreciated the facts and circumstances of the case and remitted the case that the lower adjudicating autho....

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.... in his order. In support of his contention he has also placed reliance on the Tribunal decision in the case of CST v. World Vision [Final Order No. 1523/2009-SM (BR) (PB), dated 17-11-2009]. 6. I have considered the submissions and perused the records. The ld. Commissioner (Appeals) in the impugned order held that: "Para 5.7. I find that the OIO lacks clarity and is not based on facts. The output services provided by appellant and the credit earned vis-a-vis the input services needs to be looked into afresh to arrive at the correct eligibility and liability and credit relating to free service coupons also need to be worked out taking into consideration the submissions of the appellant, which I am afraid, has not been done. Considerin....

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....ch order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." However the situation has changed after the amendment carried out by Finance Act, 2001 came into effect from 11.05.2001. The changed legal position of sub-section (3) of Section 35A is as under:- "Sub-section (3) of Section 35A, after amendment.-The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order....