M/S Bharti Airtel Ltd vs Commissioner Of Service Tax, Ahmedabad

Appeal No.ST/141/2008-DB [Arising out of OIO No.STC/06/COMMR/AHD/2008, dt.23.05.2008, passed by Commissioner of Central Excise & Service Tax, Ahmedabad]

M/s Bharti Airtel Ltd Appellant

Vs

Commissioner of Service Tax, Ahmedabad Respondent

Represented by:

For Appellant: Shri Jigar Shah, Advocate For Respondent: Shri Alok Srivastava, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision: 14.09.2015

Order No.A/11321/2015, dt.14.09.2015

Per: P.K. Das

The Appellant filed this appeal against the impugned order to the extent of confirmation of demand of Rs.1,10,940.00 alongwith interest and penalty for the period October 2004 to September 2005.

2. After hearing both the sides and on perusal of the records, we find that the demand was raised for excess utilization of CENVAT Credit of 20% of the service tax payable on taxable service tax as laid down under Rule 6(3)(c) of CENVAT Credit Rules, 2004. In the month of October 2004 and June 2005, the Appellant utilised in excess of 20% of the service tax payable of Rs.1,10,931.00 and Rs.9.00 respectively. The contention of the learned Advocate is that at the best, the Appellant is required to pay interest of the excess utilization of the credit. He relied upon on the decisions of Tribunal in the case of DHL Logistics Pvt.Ltd Vs CCE  2015 (38) STR 620 (Tri-Mum) and in the case of Mumbai International Airport Pvt.Ltd. Vs CCE  2014 (33) STR308 (Tri-Mum). He further submits that in any event, the penalty cannot be imposed in this case. He relied upon the decision of Tribunal in the case of General Manager, Telecom, BSNL Vs CCE  2015 (38) STR 1182 (Tri-Del).

3. We find from the impugned order that the Appellant had not taken this issue before the lower authorities. Normally, we are not inclined to remand matter of small amount to the Adjudicating authority. But, in the present case, there is no clarity on the fact in respect of the demand of Rs.1,10,940.00. Hence, we are unable to proceed in the matter. So, we are constrained to remand the matter to the Adjudicating authority to examine the issue at length.

4. In view of the above discussion, we set aside the demand of Rs.1,10,940.00 alongwith interest and penalty. The Adjudicating authority is directed to examine the issue at length. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before passing order. The appeal is allowed by way of remand.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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