2010 (5) TMI 468 - AT - Service Tax

Waiver of pre-deposit cenvat credit of service tax - appellant s claim for credit of service tax paid on air travel agent, tour operator and travel agent services stands denied - on the presumption that the said services might have been used for the travel of family members of the Director and for the personal visits of Directors and the employees finding not supported by any evidence - invoices issued by the agents did not indicate the purpose whether the tours were official or personal is erroneous as no agents can indicate whether the tours are personal or official - credit taken has not been utilised and therefore, the applicant has not gained any monetary benefit - appellant has made out a case for waiver

Summary

Issues:
1. Denial of credit for service tax paid on specific services.
2. Requirement to pay interest on credit taken but not utilized.

Issue 1: Denial of credit for service tax paid on specific services

The appellant, engaged in manufacturing and exporting various products, had its claim for credit of service tax paid on air travel agent, tour operator, and travel agent services denied. The impugned order demanded Rs. 66,458 from the appellant. The appellant had initially taken credit based on invoices with the Head Office address but later changed to the factory name. The Department disallowed the credit, presuming personal use by the Director and employees, which lacked supporting evidence. The appellant argued that such services were solely for the company's work, not personal use. The absence of indication in the agents' invoices regarding the tours being official or personal was highlighted, with the appellant's stance being that agents cannot specify this distinction. The Commissioner (Appeals) found that the credit taken during the disputed period remained unused, resulting in no monetary benefit to the appellant. Consequently, the Tribunal held that the appellant's case justified the waiver of dues, leading to the waiver of pre-deposit and stay on recovery until the appeal's disposal.

Issue 2: Requirement to pay interest on credit taken but not utilized

The appellant's interest liability, amounting to about Rs. 25 lakh for the disputed credit, was a subject of contention. The learned advocate for the appellant pointed out that the interest liability remained unquantified. The Department reiterated the Commissioner (Appeals)'s findings, emphasizing the non-utilization of the credit during the disputed period. The Commissioner (Appeals) had determined that since the credit remained unutilized, the appellant did not derive any monetary benefit. Consequently, the Tribunal held that the appellant's case warranted the waiver of dues, leading to the waiver of pre-deposit and stay on recovery until the appeal's disposal.

This judgment from the Appellate Tribunal CESTAT, New Delhi, addressed the denial of credit for specific service tax payments and the requirement to pay interest on credit taken but not utilized. The Tribunal found in favor of the appellant, waiving the dues and staying the recovery until the appeal's finalization.