Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2018 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (10) TMI 98 - AT - Service TaxCENVAT Credit - input services - boarding and lodging charges - it was the case of Revenue that appellant had not produced any document before him to establish the linkage between the input and output service availed and rendered by the appellant respectively Held that:- I fail to understand if those documents are still available with the appellant to be produced before this appellate Tribunal, though cannot be taken as additional evidence produced at this end, why it failed to produce those before the adjudicating authority and why the Commissioner (Appeals) had not even considered the sample copy of invoices produced before him and not given any finding on those. Admittedly, Rule 9(5) and (6) have put the burden of proof regarding admissibility of cenvat credit on the provider of output service but before utilisation of cenvat credit accumulated in once account, there is no procedure available whereby an appellant can take prior approval of availment of such credit from the competent authority. It is, therefore, equally true that onus lies on the department to justify that appellant’s availment and utilisation of cenvat credit was admissible or inadmissible. In the instant case the appellant was noticed for availment of inadmissible credit on the ground that hotel accommodation was taken for personal use of its employees. This appears to be bald allegation without any verification or scrutinisation of purpose for which accommodation was taken in the hotel by the appellant company for its employees - Scrutinisation of bills and its admissibility as piece of evidence, though permissible under the law, could never be done at this end since the same would amount to mini-adjudication and not disposal of appeal. The Commissioner (Appeals) can exercise power vested with adjudicating authority in accepting evidence and making further enquiry as he deems proper after providing opportunity to the appellant to establish and justify the nexus between the input and output services concerning admissibility of cenvat credit on tax paid for hotel and lodging accommodation. The order passed by the Commissioner (Appeals) is set aside - matter is remanded back to him for fresh adjudication - appeal allowed by way of remand.
|