Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2021 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 1274 - HC - Service TaxRefund of CENVAT Credit - cenvat credit on common input services used for providing both taxable service and exempt service - rejection on the ground that there was no identity of input services as far as direct trading and incentive trading were concerned - non-adherence to the procedure laid down under the Rules for payment/reversal - burden of prove - HELD THAT:- Since the impugned communication is a show cause notice, the burden lies heavy upon the petitioner to establish that the same is bereft of jurisdiction, as the scope of interference under Article 226 in such case is limited. The scope of examination is restricted to the question as to whether the impugned show cause notice stretches beyond the scope of remand by the CESTAT. Entitlement to credit - HELD THAT:- The issue stands decided at the level of the first Appellate Authority and hence the show cause notice purporting to re-open the question of entitlement to credit, is bad in law. It is only on the aspect of quantification that the matter has been remanded by the Tribunal and the respondent ought to have restricted himself to a verification of this aspect alone. There are two opportunities that present to the respondent. The first is the filing of an appeal in terms of Section 86(1) of the Finance Act, 1994 which provides for an appeal to be filed by a person aggrieved by an order of the first appellate authority within three months from the date of receipt of the order. The second is in terms of Section 86(4) where either the Department or an assessee who has not filed an appeal against the order of the first appellate authority may, within 45 days of receipt of notice of an appeal filed by the other party, file a memorandum of cross-objection which shall be disposed by the Appellate Tribunal as though it were an appeal presented within the time stipulated for filing of an appeal. The identity of input services stands settled and it is only on the quantification thereof that the petitioner can be called upon to respond. Thus the respondent will issue a fresh show cause notice limiting the scope of examination to the quantification of input service alones, call upon the petitioner to file a response and conclude the matter within a period of eight (8) weeks from the date of uploading of this order. Petition disposed off.
|