Case Law Details
In this case, the Service Tax demand has been confirmed on the ground that the service tax payable has not been debited in the CENVAT Credit account and it has not been reflected in the ST 3 return. In view of the fact that even in the cases of clandestine removal in Central Excise matters, while confirming the demand, the benefit of CENVAT Credit, subject to verification of records that proper documents are available and raw input/ capital goods have been received, the benefit of CENVAT Credit is allowed.
This being a technical ground that the appellant did not make debit of the CENVAT Credit and did not make proper entries in the ST-3 return, confirmation of service tax demand is not justifiable. Therefore, the matter is required to be remanded to original adjudicating authority, who shall verify the CENVAT Credit account of the appellant and if sufficient credit is available, deduct the same from the actual service tax liability after requiring the appellant to make the debit. It is the submission of the appellant that if this is done, no amount is payable. As regards liability of the payment of Rs.28,373/-, learned Chartered Accountant submitted that there was a circular issued by the Board stating that sub-contractor is not liable and only in September 2007, this instruction was reversed. However, these facts have not been brought before the lower authorities and have not been considered. Only submission was that the appellant is not liable in the capacity of sub-contractor.6. In view of the above discussion, the matter is remanded to the original adjudicating authority for fresh consideration of the issues in the light of above observations.
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, AHMEDABAD
Appeal No. ST/431/2010
Application No. ST/S/1261/2010
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