2010 (5) TMI 483 - HC - Service Tax

Cenvat credit of service tax paid - CENVAT credit availed of by the respondent in relation to cement and steel, air-conditioners, club fees, services provided to importers by Customs House Agents, rent-a-cab operators, mobile phones etc. - Tribunal confirmed the demand in relation to cement and steel as well as service tax paid on club house fees, whereas insofar as the demand in relation to input credit in respect of service tax paid on mobile phones, CHA and surveyor charges, rent-a-cab, club house fees and professional charges paid to consultants for construction, soil testing and labour, as well as credit of duty paid on the air-conditioners etc., was concerned, it was held that CENVAT credit of duty paid in respect thereof was admissible - order of the Tribunal does not suffer from any legal infirmity so as to warrant interference Appeal dismissed

Summary

Issues:
- Interpretation of CENVAT Credit Rules for various services
- Admissibility of CENVAT credit for specific services
- Liability for penalty under CENVAT Credit Rules

Interpretation of CENVAT Credit Rules for various services:
The appellant-revenue challenged the Tribunal's order regarding the interpretation of CENVAT Credit Rules. The respondent, providing port services and holding service tax registration, availed CENVAT credit on various services. The revenue contended that certain credits were inadmissible, leading to a show-cause notice for recovery under the Rules and relevant Act sections. The adjudicating authority confirmed the demand, including interest and penalty. The Tribunal upheld the demand for some services but allowed credits for others, such as service tax on mobile phones, CHA services, rent-a-cab, surveyor charges, and professional fees. The Tribunal relied on a previous decision by the Commissioner (Appeals) that had not been challenged by the revenue, citing the principle of judicial discipline and consistency for the same assessee. The Tribunal's decision on the admissibility of certain CENVAT credits was upheld based on factual findings and lack of legal challenge.

Admissibility of CENVAT credit for specific services:
Regarding the demand related to the credit of duty on air-conditioners, the Tribunal found the assessee entitled to the credit based on evidence. The appellant failed to identify any flaws in the Tribunal's factual findings, thus not raising any legal question. The judgment emphasized the importance of judicial comity and consistency in approaching issues for the same assessee, preventing the revenue from re-agitating issues without valid reasons or changes in circumstances. The Tribunal's decision on the admissibility of CENVAT credit for air-conditioners was upheld due to the absence of challenges to factual findings or legal grounds.

Liability for penalty under CENVAT Credit Rules:
The judgment concluded that the Tribunal's order did not contain any legal flaws warranting interference. It clarified that the revenue could not rely on a previous decision to re-agitate issues without demonstrating mala fide intentions but rather based on judicial discipline and consistency. As no substantial legal questions arose from the Tribunal's order, the appeal was dismissed, and related applications were disposed of accordingly.