Internet Logistics vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 164-2012 dated 14/11/2012 passed by Commissioner of Central Excise and Service Tax (Appeals), HYDERABAD-II ]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Internet Logistics 31/3, 2rt, Prakash Nagar, Begum Pet, HYDERABAD - AP Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II NULL L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

Shri Rajesh Kumar, C.A., HIREGANGE & ASSOCIATES CHARTERED ACCOUNTANTS #1010, 1ST FLOOR, ABOVE CORPORATION BANK 26TH MAIN, 4TH T BLOCK, JAYANAGAR, BANGALORE 560 041 For the Appellant

Shri S. Teli, Deputy Commissioner(AR) For the Respondent

Date of Hearing: 28/04/2015

Date of Decision: 28/04/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 21038 / 2015

Per : ARCHANA WADHWA

After hearing both the sides, we find that Commissioner(Appeals) vide his impugned order has dismissed the appeal for non-compliance with the stay order passed by him vide which the appellant was directed to deposit 50% of the confirmed demand.

2. The appellants are engaged in courier service and availed the services of various other agencies like airlines, through the middle men. The appellants actually paid for the said services and accounted the same in their books of accounts and availed the CENVAT credit.

3. Such availed CENVAT credit to the tune of around Rs.44.89 lakhs stands denied to the appellant on the ground that the documents are not in the name of the appellants. On the other hand, it is the appellants contention that it is they who have availed the services, paid for the samd and utilised the same in providing outdoor services. In such a scenario, technical objection of the documents being not in their name cannot be adopted by the Revenue, in terms of the provisions of Rule 9(2). Learned advocate, however, fairly agrees that Rule 9(2) was not claimed before the original adjudicating authority but submits that all other contentions were raised, which were not examined by the Assistant Commissioner.

4. Inasmuch as the basic issue i.e. whether it is the appellant who paid for the services and accounted for the same in their books of accounts and utilised the same for providing outdoor services, was not examined by the original adjudicating authority, we deem it fit to set aside the impugned orders and remand the matter to the original adjudicating authority for doing the needful. In the ordinary course, we would have remanded the matter to the Commissioner(Appeals) as he has not decided the matter on merits, but in view of the fact that examination of documents have not been carried out by the original adjudicating authority, we have decided to remand the matter to the original adjudicating authority. Stay petition as also appeal get disposed of in above manner.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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