2009 (9) TMI 610 - AT - Service Tax

GTA Waiver of pre-deposit - pre-deposit waived abetment - CBEC clarified that the benefit could be allowed on production of consignment notes carrying evidence of the GTA not having availed Cenvat credit - notification does not require any such condition to be fulfilled for the appellants to qualify for the benefit - authority had not verified if the transporter had actually not availed Cenvat credit and had gone by the declaration furnished - pre-deposit waived

Summary

Issues:
1. Benefit of Notification No. 32/2004-S.T. denied by Commissioner.
2. Requirement of verification of transporter's Cenvat credit availed.
3. Prima facie case for waiver of pre-deposit and stay of recovery.

Analysis:

1. Benefit of Notification No. 32/2004-S.T. denied by Commissioner:
The original authority initially allowed the benefit of Notification No. 32/2004-S.T. for GTA services received by the appellants. However, the Commissioner revised this decision, denying the benefit and demanding Service tax along with interest and penalties under Sections 76 and 78 of the Finance Act, 1994. The appellants argued that the notification did not require any additional conditions beyond the declaration submitted by the transporter to establish eligibility for the benefit. They relied on a Tribunal decision that held the declaration requirement as procedural and substantial compliance with the notification. The Tribunal found merit in the appellants' argument based on case law and ordered waiver of pre-deposit and stay of recovery pending appeal.

2. Requirement of verification of transporter's Cenvat credit availed:
The appellants submitted a declaration from the transporter stating that they had not availed Cenvat credit, which was a condition for the benefit under the notification. The Commissioner, however, did not verify this claim and solely relied on the declaration. The learned DR requested the matter to be remanded for verification of whether the transporter had indeed not availed Cenvat credit. The Tribunal acknowledged the lack of verification by the authorities and considered the appellants' case as prima facie against the demands, emphasizing the need for proper verification before denying the benefit.

3. Prima facie case for waiver of pre-deposit and stay of recovery:
After considering the submissions from both sides and the legal arguments presented, the Tribunal concluded that the appellants had established a prima facie case against the demands made in the impugned order. Citing the strength of the case law and the lack of verification by the authorities, the Tribunal ordered the waiver of pre-deposit of the adjudged dues and stayed the recovery pending the final decision in the appeal. This decision was based on the appellants' argument regarding the procedural nature of the declaration requirement and the authorities' failure to verify the transporter's claim of not availing Cenvat credit, highlighting the importance of proper verification in such cases.