Suvendu Kumar Pati ORDER
Dr. Suvendu Kumar Pati, Member (J)
1. The confirmation of the finding in the order-in-original on input credit availed against boarding and lodging charges paid by the appellant company as inadmissible credit thereby imposing tax liability along with interest and penalty, is the subject matter of this appeal.
2. Factual backdrop of the case as revealed from the appeal memo, is that appellant company is engaged in rendering event management service, advertising service, sponsorship and business consultation service etc. and has obtained service tax registration for the same. During the EA-2000 audit conducted in 2015 it was noticed that during the financial years between 2010 and 2015, cenvat credit was availed by the appellant company in respect of car hire charges, boarding and lodging expenses and car insurance charges to the tune of ` 29,62,185/- out of which appellant voluntarily reversed the credit availed against car hiring charges and car insurance charges and preferred not to contest the same. It has only questioned the legality, non-admissibility of input credit availed against boarding and lodging charges of ` 14,58,075/-. The order-in-original confirmed the entire tax liability and demand, interest as well as penalty of equivalent amount of ` 29,62,185/- by invoking extended period and the same was confirmed by the Commissioner (Appeals).
3. In his memo of appeal and during the course of hearing of appeal, the ld. Counsel for the appellant submitted that the appellant had produced invoice copies and other correspondence made with hotel before the adjudicating authority and also the Commissioner (Appeals) to justify the nexus between input and output service but no finding was given by the Commissioner (Appeals) on sample invoice etc. produced before him. In producing newspaper clippings and detail chart containing invoice copies of Le Meridian hotel, he also wanted to justify the nexus between and input and output service so as to bring services availed by them as admissible input credits. Despite the fact that Rule 23 of the CESTAT Procedure Rules does not permit a party to do so, unless being expressly directed by the Tribunal or after obtaining its consent.
4. Per contra, the ld. AR Shri M.P. Damle, AC (AR) for the department submitted that such hotel deals stretched over a period of nearly six months stay at New Delhi and to organise an event such long period is not required. In reply the ld. Counsel for the appellant argued that considering the significance and magnitude of an event, the preparatory time varies.
5. After through the case record it is found that the adjudicating authority in its order-in-original has categorically stated that the appellant had not produced any document before him to establish the linkage between the input and output service availed and rendered by the appellant respectively. No finding is forthcoming in the Order-in-Appeal concerning the production of sample copy of invoices etc. before him justifying accommodation expenses at the location of Marathon event. Supporting newspaper clipping produced on the day of argument before this Tribunal indicates that sitting Chief Minister of Delhi with MD of appellant company, Vivek B. Singh, and Sarang Khande had joined the event and unveiled the souvenir (docket) and in the detail of invoices obtained from Le Meridian, the name of said MD of appellant company Vivek Singh appears at least in three places to have stayed in the said hotel in the month between August and November for one to two nights on each occasions. I fail to understand if those documents are still available with the appellant to be produced before this appellate Tribunal, though cannot be taken as additional evidence produced at this end, why it failed to produce those before the adjudicating authority and why the Commissioner (Appeals) had not even considered the sample copy of invoices produced before him and not given any finding on those.
6. Admittedly, Rule 9(5) and (6) have put the burden of proof regarding admissibility of cenvat credit on the provider of output service but before utilisation of cenvat credit accumulated in once account, there is no procedure available whereby an appellant can take prior approval of availment of such credit from the competent authority. It is, therefore, equally true that onus lies on the department to justify that appellant's availment and utilisation of cenvat credit was admissible or inadmissible. Going by the negative list, it cannot be said that the respondent department has discharged its duty with an affirmative opinion, may be by-passing the presumption that those services are used for personal consumption of the employees. In a indirect way, the purpose of audit is primarily to scrutinise the documents to arrive at the admissibility of cenvat credit and ascertain discharge of tax liability by a company, besides getting a firsthand information on tax evasion, non-payment etc.
7. In the instant case the appellant was noticed for availment of inadmissible credit on the ground that hotel accommodation was taken for personal use of its employees. This appears to be bald allegation without any verification or scrutinisation of purpose for which accommodation was taken in the hotel by the appellant company for its employees. Since the nature of job of the appellant was to provide event management service which can never remain confined to the place where appellant's registered office is situated, the same has to be at the place chosen by the service recipient. If the said place is situated at an outside location, then hotel accommodation could be considered as a basic requirement. However, scrutinisation of bills and its admissibility as piece of evidence, though permissible under the law, could never be done at this end since the same would amount to mini-adjudication and not disposal of appeal. Section 35A(3) empowers the Commissioner (Appeals) to make such further enquiry as may be necessary to pass such order as he may think proper and in view of the decision of the Hon'ble Supreme Court reported MIL India Ltd. vs. CCE [2007 (260) ELT 188 (SC)] I am of the view that the Commissioner (Appeals) can exercise power vested with adjudicating authority in accepting evidence and making further enquiry as he deems proper after providing opportunity to the appellant to establish and justify the nexus between the input and output services concerning admissibility of cenvat credit on tax paid for hotel and lodging accommodation. Hence the order-
Order
The order passed by the Commissioner (Appeals) vide Order-in-Appeal No. IM/CGST A-I/MUM/176 to 177/17-18 dated 31.01.2018 is hereby set aside. The matter is remanded back to him for fresh adjudication by the Commissioner (Appeals) in terms of the above observation.
(Pronounced in Court on 28.09.2018)
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