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2022 (12) TMI 55 - AT - Service TaxCENVAT Credit - availment of depreciation under Income Tax Act, 1961 was assailed as breach in common - failure to discharge tax liability earned for rendering of taxable service for the period from 1st April 2009 to 30th September 2009 for which section 73 of Finance Act, 1994 has been taken recourse to - HELD THAT:- The adjudicating authority has failed to consider the altered paradigm consequent upon notification of Point of Taxation Rules, 2011 by which the regime of taxation of receipts was substituted by taxation of accruals. The impugned order has also failed to take into consideration the liability discharged by the appellant; settled law on such compliance must be given effect to. The contention of the appellant that depreciation claimed earlier has since been revised and appropriate changes made in returns under Income Tax Act, 1961 should have been considered in the light of judicial decision without exceeding the jurisdictional competence of the adjudicating authority for insisting upon acceptance of the same by authorities empowered under that statute. The adjudicating authority is required to consider the evidence furnished by the appellant that duty liability having been discharged on ‘tippers’ sourced by them, as now placed on record, before concluding that the credit availed therein is ineligible. The impugned order is, thus, bereft of findings based on law, as enacted and judicially determined, applied to the facts put forth by the assessee and requires re-determination - matter remanded back to the original authority for fresh disposal of show cause notice after granting opportunity to assessee to make submissions on all issues. Appeal allowed by way of remand.
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