2010 (12) TMI 221 - AT - Service Tax

Penalty - Cenvat Credit on GTA - whether the respondent are liable for penalty for payment of service tax by utilising cenvat credit. - Held that Since during that period, there were conflicting judgements of the Tribunal on this issue, and as such there is nothing on record from which any malafide intention can be inferred on the part of the respondent, I am of the view that there is no infirmity in the impugned order in setting aside the penalty on the respondent. The Revenues appeals are, therefore, dismissed.

Summary

Issues: Liability for penalty under Cenvat Credit Rules, 2004 for payment of service tax using cenvat credit on GTA service.

Analysis:
The case involved the respondent, a manufacturer of welding electrodes, who utilized cenvat credit to pay service tax on GTA service received as a recipient. The department contended that since the GTA service was not their output service, utilizing cenvat credit for service tax payment was incorrect. Show cause notices were issued for service tax payment, interest, and penalty. The Assistant Commissioner confirmed the service tax demands, while the penalty was set aside by the Commissioner (Appeals), leading to the department's appeal against the penalty decision.

During the hearing, the department argued that the respondent violated Cenvat Credit Rules, 2004, making them liable for penalty under Rule 15 of the rules along with Section 76 of the Finance Act, 1994. On the other hand, the respondent's counsel highlighted the existence of conflicting tribunal judgments during the period in question regarding the use of cenvat credit for paying service tax on GTA service, asserting no malafide intention on the respondent's part.

After hearing both sides and examining the records, the judge focused on whether the respondent should be penalized for utilizing cenvat credit for service tax payment. Given the conflicting tribunal judgments during the relevant period and the absence of evidence indicating malafide intention on the respondent's part, the judge concluded that the penalty set aside by the Commissioner (Appeals) was appropriate. Consequently, the judge dismissed the Revenue's appeals, affirming the decision to waive the penalty on the respondent.