C.S.T. Vs. SOLUTIONS

JUDGEMENT

(1.) THE Respondent are registered with Service Tax Department in the category of Real Estate Agent service providers. It was alleged that during the period from October, 2004 to March, 2005, they have taken and utilised CENVAT credit of Rs. 13,260/ - in respect of certain input services to which they were not entitled. The Asstt. Commissioner vide Order -in -Original Dated 20.11.2009 disallowed CENVAT credit and confirmed the CENVAT credit demand along with interest and imposed penalty of equal amount on them under Section 76 of the Finance Act , 1994. From the Order -in -Original, it is seen that the order was passed ex parte as the Respondent did not appear for personal hearing on 14.10.2009, 20,10,2009, 23.10.2009 and 28.10.2009. The Order, however, mentions that the Respondent in their written submissions had pleaded that they had taken the CENVAT credit of Rs. 13,260/ - on account of commission paid to one Shri Gopal Krishnan registered with Service Tax Department and had also filed copies of the invoices issued by Shri Gopal Krishnan. However, the Asstt. Registrar while denying the CENVAT credit and confirming the CENVAT credit demand passed the following orders:

(2.) THE Respondent filed the appeal to the Commissioner (Appeals) against this order of the Asstt. Commissioner and before the Commissioner (Appeals), they again pleaded that the services in respect of CENVAT credit had been received by them, they had produced the invoices before the original adjudicating authority. The Commissioner (Appeals) vide order -in -appeal No. 160/ST/DLH/2010 Dated 8.7.2010 set aside the Asstt. Commissioners order with direction to re -examine the case and pass the order by affording an opportunity of personal hearing to the Appellant and record reasons as to why the services utilised by the Appellant were not an input service for the output services of the Appellants. Against this order of the Commissioner (Appeals), the department had filed an appeal on the ground that the provisions of Section 86 of the Finance Act, 1994 regarding filing appeal before the Commissioner (Appeals) are in pari materia with the provisions of Section 35 A of the Central Excise Act, 1944, that in view of the judgment of the Hon'ble Supreme Court in the case of MIL India Ltd. reported in : 2007 (210) ELT 188 (SC) and Hon'ble Punjab and Haryana High Court in the case of B.C. Kataria reported in : 2008 (221) ELT 508 (P and H), the Commissioner (Appeals) during the period of dispute did not have the power of remand and hence, the Commissioner (Appeals)s order, which amounts to remand of the order to the original adjudicating authority is not legal and proper.

(3.) SHRI K.P. Singh, ld. DR assailed the impugned order reiterating the grounds of appeal in the Revenues appeal. He pleaded that since in this case no verification is required, on the basis of the documents available in Divisional or Range Office, it was possible for the Commissioner (Appeals) to take a view with regard to correctness or otherwise of the order -in -original at his level and it was not legal and proper for him to remand the matter for which he had no powers.