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ST - Commissioner(A) not addressing issues raised in appeal memorandum - In its absence, it would be inappropriate and difficult to record a finding on the same at second appellate stage - matter remanded: CESTAT

By TIOL News Service

KOLKATA, JUNE 20, 2014 : A demand was issued for a total amount of Rs.51.26 lakhs which comprised of wrong availment of CENVAT Credit of Rs.32.37 lakh and short payment of Service Tax of Rs.18.88 lakh.

Against the order of the adjudicating authority confirming the demand and imposition of penalty, the appellant filed an appeal before the Commissioner(A).

The lower appellate authority allowed the appeal in the matter of disallowance of CENVAT credit by the original authority but did not record any finding on the short payment of tax or in the matter of penalty. Inasmuch he reduced the demand to Rs.18.88 lakhs but retained the penalty of Rs.51.26 lakhs.

So, the appellant is before the CESTAT with a Stay application.

The Revenue representative fairly accepted that no categorical finding had been recorded on the issue of short payment of service tax of Rs.18.88 lakh and penalty by the Commissioner (Appeals) and had no objection if the matter was remanded for decision on these issue afresh.

The Bench observed -

+ The Commissioner (Appeals) had not addressed the issues raised in the Memorandum of Appeal, which include short payment of service tax and imposition of penalty, even though he had allowed the Appeal on wrong availment of CENVAT Credit in favour of the Appellant.

+ In the absence of any finding by the Commissioner (Appeals) on the above aspect, it would be inappropriate and difficult to record a finding on the same at the second appellate stage.

+ Both sides agree that these issues be addressed by the Commissioner (Appeals) by recording the points raised relating to short payment of service tax and penalty imposed by the Adjudicating Authority.

In the result, the Bench set aside the order of the lower appellate authority to the extent of confirmation of short payment of service tax and imposition of penalty, and remanded the matter to decide these issues afresh.

The appeal was disposed of in above terms.

In passing : Sheer waste of time, energy, money and everything…

(See 2014-TIOL-1074-CESTAT-KOL)


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