AANEX SERVICES Vs. CCE

JUDGEMENT

(1.) APPLICANT is challenging the order of the Commissioner (Appeals), Chandigarh dated 3.7.2007.

(2.) IN this case, the appellant has availed service tax credit of Rs. 13,51,976/ - on the basis of photo copy of receipt issued by the Indian Airlines Limited in favour of them. The said receipt did not contain address of the person receiving the said service, description, classification and value of taxable service, registration number of service provider. Adjudication Authority disallowed credit based on the observation that the appellant's claim of Cenvat Credit was not as per Cenvat Credit Rules, 2004. A show cause notice was issued to them indicating that the appellant took credit on the basis of the photo copy of the documents which were not in their name and not a prescribed document. Adjudicating Authority found that the document produced by the appellant was not specified eligible document under Sub -rule (1) of Rule 9 of the Cenvat Credit Rules, 2004 for availment of Cenvat credit. It was also held that the case was not covered for scrutiny under Sub -rule (2) of Rule 9. The Adjudicating Authority finding that the appellant had deliberately suppressed this fact from department for the purpose of evading service tax also imposed penalty under the Rules apart from recovering of Cenvat credit of Rs. 13,51,976/ - along with interest. When the matter went before the Commissioner (Appeals), learned Commissioner vide his stay order dated 21.5.2007 found prima -facie that the appellant's case had no strong merit and that the appellant could not succeed in establishing the balance of convenience in their favour besides finding no proof of their financial hardship for waiver of pre -deposit under Rule 35F. He thus directed the appellant to deposit Rs. 6 lacs towards service tax and Rs. 3 lacs towards penalty as pre -deposit for the purpose of hearing their appeal.

(3.) ACCORDING to the learned Counsel for the applicant, modification application filed by them before the learned Commissioner (Appeals) was not considered by him in a proper perspective while passing the impugned Order -in -appeal dated 3.7.2007. According to the learned Counsel for the appellant, in the modification application, they had relied upon the Tribunal's order in Jay Pee Bela Cement v. CCE Raipur in which the Tribunal had allowed the stay application unconditionally as the appellate authority below did not decide the case on merits and the case was remanded without pre -deposit's requirement.