Whether there is a contradiction in Tribunal’s order when demand is set aside and matter is remanded back?

PJ/CASE LAW/2016-17/3059

Case:- DELOITTE HASKINS & SELLS Versus COMMISSIONER OF SERVICE TAX, MUMBAI
Citation:- 2015 (40) S.T.R. 1095 (Tri. - Mumbai)
Issue:- Whether there is a contradiction in Tribunal’s order when demand is set aside and matter is remanded back?
Brief Facts:- This ROM application is filed by Revenue on two grounds namely :
(i) There is an apparent error in the Tribunal Order [2015 (38)S.T.R.1220 (Tri.-Mumbai)] to the effect that on the one hand CESTAT has set aside the demand of Rs. 31,25,737/- and Rs. 5,65,600/- and allowed the Cenvat credit and on the other hand CESTAT has remanded the matter to the adjudicating authority. Thus, there is a contradiction in the CESTAT on findings and
(ii) For verification in terms of Tribunal’s Order, the respondent submitted certificates from major service providers namely M/s. Patmans & G. Hospitality Pvt. Ltd., M/s. Deloitte Consulting India Ltd., and M/s. Deloitte & Touch Assurance & Enterprise Risk Service India Pvt. Ltd. The certificates which have been submitted now by the respondent for verification were not presented by them before the adjudicating authority and not discussed in the Orders-in-Original as well.
Another certificate was issued by M/s. Blue Dart after 9/10 years of the issue of the invoices. In the 5th Certificate date of issue of certificate is not mentioned. Hence, the verification does not lead to the conclusion that the services were used in the Mafatlal House.
Reasoning of Judement:- TheTribunal has carefully considered the submissions of the both parties.
As regards the first issue they find that their Order is very clear. The order allows the Cenvat Credit in principle. It was remanded only to be verified by the adjudicating authority that the input services in respect of which credit was availed were actually received by them and utilized by them. They find no contradiction in our Order.
As regards the Cenvat credit availed on the basis of certificates of service providers, the appellant has shown the letter submitted in reply to the show cause notice. It clearly indicates that the letters obtained from the service providers were submitted under the said letter. Further this letter is shown received by Inspector of Central Excise (Adjudication), Thane-I, Commissionerate. Therefore it appears that the Commissioner has filed this ROM without caring to see his own records. Reasons such as date of issue of certificate not being mentioned cannot be a reason to deny the substantial benefit. It was for the authorities to verify whether the services were received and actually utilized.
They fail to appreciate the grounds on which ROM is filed when the matter was simply remanded for verifying the actual use of input services certificates having been produced earlier as mentioned above, there is no ground to deny the Cenvat credit which was sought to be availed on the basis of these certificates.
In view of the above, the ROM application is rejected.
Decision:-Revenue’s ROM application rejected

Comments:- The essence of the case is that the revenue filed ROM application before the Tribunal on the ground that the Tribunal has allowed the Cenvat credit to the assessee and remand back the case to adjudicating authority and the second matter is that the assessee has produce some certificate in respect of cenvat credit which were not produce before the adjudicating authority and also not discussed in Order in original.
The Tribunal has decided the case in favor of assessee and held thatthe there was no contradiction in the order because case was remanded back only to verify that the input services in respect of which credit was availed were actually received by the assessee. In the second point the Tribunal finds that the Letter has been produce by the assessee to the Inspector of the Department wherein all the details of certificates are available. Hence, the decision in favour of assessee is the correct decision.

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PJ/CASE LAW/2016-17/3059

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