2011 (6) TMI 898 - AT - Service Tax

GTA service - payment of service tax in cash of through utilization of cenvat credit - contention of the Revenue is that prior to 19-4-2006, irrespective of whether a person provided taxable service and/or manufactured dutiable final products or did not provide any taxable service or manufactured any dutiable final products, he was required to pay the service tax on the GTA service received by him in cash, not through Cenvat credit - whether service tax on GTA service received can be paid through Cenvat Credit or cash? - Held that - The ratio of the Delhi Bench in the case of M/s. ITC Ltd. v. Commissioner of Central Excise, Guntur 2011 (3) TMI 186 - CESTAT, BANGALORE , is squarely applicable to the present case, where it was held that - the service tax on GTA service received by them by the appellant which was not paid in cash but was paid through Cenvat credit account the same would be recoverable from them. Penalty - Held that - the issue relating to payment of service tax on GTA service through cash was in dispute, the penalty is not sustainable and is liable to be set aside. Appeal allowed - decided partly in favor of assessee.

Summary

Issues Involved:
1. Recovery of Cenvat credit amount
2. Imposition of penalties under various rules
3. Payment of service tax on GTA service through Cenvat credit or cash
4. Jurisdictional issue regarding appeal filing

Analysis:

Recovery of Cenvat Credit Amount and Imposition of Penalties:
The appeal pertains to the recovery of Cenvat credit amounting to Rs. 80,492 and the imposition of penalties by the lower adjudicating authority. The respondent, engaged in manufacturing, paid service tax on transport of inputs through Cenvat credit. The lower authority ordered recovery and imposed penalties under various rules. The Commissioner (Appeals) allowed the respondent's appeal, leading the revenue department to file the present appeal.

Payment of Service Tax on GTA Service:
The main issue revolves around whether service tax on GTA service received should be paid through Cenvat credit or cash. The revenue contended that, prior to 19-4-2006, service tax on GTA services had to be paid in cash, not through Cenvat credit, irrespective of the person's provision of taxable services or manufacturing activities. The respondent argued that the issue was pending before a Larger Bench and requested a remand. The Tribunal analyzed the legal provisions and held that service tax on GTA services received had to be paid in cash before 19-4-2006, even if the person did not provide taxable services or manufacture dutiable products.

Jurisdictional Issue Regarding Appeal Filing:
A jurisdictional issue was raised regarding the appeal filing since the case pertained to a period before the appellant opted for LTU. The circular related to the transfer of show cause notices to LTU and did not impact appeals filed with the Tribunal. The objection based on jurisdiction was overruled.

Conclusion:
The Tribunal upheld that service tax on GTA service received had to be paid in cash before 19-4-2006, even if paid through Cenvat credit. The recovery of the amount not paid in cash was deemed necessary, while penalties were set aside due to the dispute over payment method. The appeal was allowed in favor of the revenue department, setting aside the order-in-appeal dropping the demand.