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2022 (6) TMI 924 - HC - Service TaxValidity of SVLDRS-3 issued to petitioner - non consideration of the CENVAT credit claimed by the Petitioner - SVLDRS-3 challenged on the ground that the same is issued without deducting the eligible CENVAT amount - HELD THAT:- The entire CENVAT credit claimed by the Petitioner was not allowed by the adjudicating authority while passing the order in original. The Appeal filed against the said order was also dismissed on the ground of limitation. The stand of the Respondent is that the Petitioner never produced on record the documents to justify the claim of CENVAT credit - In the present case, it is not disputed that the Petitioner was given opportunity of hearing. Written submissions were also placed on record by the Petitioner. Judgments relied by the Petitioner are basically on the point that the amount of pre-deposit made has to be considered. There cannot be any dispute with the said proposition. In the present case, the factum of the CENVAT credit as claimed by the Petitioner is in dispute. According to the department, Petitioner could not produce any document to justify the claim of the CENVAT credit i.e. dis-allowed by the adjudicating authority. No doubt Petitioner would be entitled for the benefit of CENVAT credit. The Petitioner will have to justify the same by necessary documentary evidence. Once the CENVAT credit is disallowed, in absence of proof of it, it would be difficult for the court to conclude about the justification to claim the benefit of CENVAT credit - In absence of the proof, of the Petitioner having paid the tax to which the Petitioner is entitled for the benefit of CENVAT, the documents would be necessary to come to the conclusion. It is not the case that the Petitioner was not accorded with the opportunity. The show cause notice were issued to the Petitioner giving the details. Claim of the Petitioner for CENVAT credit to a large extent was disallowed. In view of disallowance, it is difficult to arrive at a conclusive finding that the Petitioner would be entitled for the entire CENVAT credit as claimed by the Petitioner so as to negate SVLDRS-3 - Petition dismissed.
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