1. Cenvat credit of Rs. 2,84,008/- of service tax paid by the appellants on business auxiliary service has been disallowed on the ground that the credit was availed on the basis of debit notes and therefore the same is not admissible. An equal amount of penalty has also been imposed and interest has also been demanded. Hence the appeal.

2. Shri Vipul Khandhar, learned Chartered Accountant, on behalf of the appellants submitted that the c redit of service tax paid by them on the business auxiliary services (Commission Agent) received by them has been disallowed on the ground that the same was taken on the basis of debit notes. He submits that there was an omission on the part of the service provider in not issuing a proper invoice but issuing debit notes for the services provided. He submits that the service was provided by Pharmalab (I) Pvt. Ltd. He drew my attention to the fact that even though the documents have been called as debit note, they contain all the details which are required as per proviso to Rule 9(2) of CENVAT Credit Rules and therefore denial of the same by the Original Adjudicating Authority and the Appellate Authority is not correct. Learned DR, submits that credit has been taken on the basis of debit notes and it is not a prescribed document.

3. I have considered the submissions made by both the sides. I find that the Assistant Commissioner in his order in para 10 has observed as under :

"10. Considering the entire facts and circumstances of the case the assessee has taken Cenvat on Debit Note. As per Rule 4A of Service Tax Rules, 1994 the documents submitted is not showing the relevant particulars like (i) Name & Address, Regn., No., of the commission agent, (ii) the name and address of the person who receiving taxable service (iii) the description, classification and value of taxable service provided, (iv) the service tax payable thereon. They have availed credit of service tax on the basis Debit Note. They only furnished the payment particulars in respect of service tax paid by the service provider and attached computer generated work sheet in their favour only under which M/s. Pharma Lab India Pvt. Ltd. Mumbai has paid month wise wherefrom it is not cleared whether it is paid for the said assessee. In view of the above findings, the duty demanded vide SCN is required to be confirmed on the above grounds."

4. Commissioner (Appeals) also has taken the same view. However, from the copies of debit notes submitted during the hearing I find that the debit notes issued by the service provider contained the details of service tax payable, description of the taxable service (sales commission), value of the taxable service, registration no. of the service provider, name and address of the service provider. These are the details which are required as per Rule 9(2) of CENVAT Credit Rules, 2004. The observations of the Assistant Commissioner are contrary to the facts noticed by me on the basis of documents submitted before me. Since it is not clear as to whether the same documents which were produced before me were produced before the Assistant Commissioner or not, the matter has to go back to the Assistant Commissioner who shall go through the documents, verify whether service has been received and whether all the particulars as required under the Rules are available in the debit notes and adjudicate the matter afresh. If documents contain details required under Rule 98 (sic) [9(2)] of CENVAT Credit Rules, benefit of Service Tax Credit may be extended. Needless to say the appellants shall be given an opportunity to present their case and also the Assistant Commissioner shall be free to get any verification if necessary done.