2011 (5) TMI 128 - AT - Service Tax

Waiver of pre-deposit - Application for stay - Cenvat credit - Rule 14 of CCR - Intellectual property services - CBEC letter F.No. 249/1/2006-CX.4, dated 27-10-2008 - Assessee charged consideration for allowing the CBUs/tie up manufacturers using its brand name on the IMFL/packaged drinking water at the rate of 2 per cent of the net sales realization and paid service tax on the same - alcoholic beverages not being excisable goods do not fall under exempted goods as defined under rule 2(1)(d) of CCR - As provisions of rule 6(3)(c) of CCR are not attracted in the assessee can utilize the credit to discharge the tax liability for service provided without being limited by the ceiling of 20 per cent of the tax due - Decided in the favour of the assessee

Summary

Issues Involved:
1. Waiver of pre-deposit and stay of recovery of adjudged dues.
2. Classification of services provided as Intellectual Property Service (IPS).
3. Admissibility of Cenvat credit on inputs and input services.
4. Applicability of Rule 6(3)(c) of Cenvat Credit Rules (CCR).
5. Mutual exclusivity of service tax and sales tax.

Issue-wise Detailed Analysis:

1. Waiver of Pre-deposit and Stay of Recovery:
The applications filed by the appellant sought waiver of pre-deposit and stay of recovery of service tax amounting to Rs. 13,15,91,471, applicable interest, and various penalties imposed under sections 76, 77, and 78 of the Finance Act, 1994, and rule 15 of the Cenvat Credit Rules, 2004. The Tribunal noted that the appellant had already discharged a significant portion of the tax liability utilizing Cenvat credit and ordered a complete waiver of pre-deposit and stay of recovery pending the decision in the appeals.

2. Classification of Services as IPS:
The Commissioner held that the appellant provided taxable Intellectual Property Service (IPS) by allowing Contract Bottling Units (CBUs) to use their brand name/logo for manufacturing IMFL and packaged drinking water. The appellant argued that the transfer of Intellectual Property Rights (IPR) attracted sales tax and not service tax. However, the Commissioner followed CBEC instructions and adjudged that the appellant had rendered IPS, charging 2% of the net sales realization as consideration, and had discharged service tax liability accordingly.

3. Admissibility of Cenvat Credit:
The Commissioner disallowed Cenvat credit of Rs. 10,17,92,834 availed by the appellant on inputs and input services, except for advertisement and sales promotion services. The disallowed credits included services such as security service, audit, and manpower recruitment, which were deemed not to have a nexus with the output service (IPS). The appellant argued that they manufactured IMFL and rendered taxable service, thus the provisions of rule 6(3)(c) of CCR were not attracted.

4. Applicability of Rule 6(3)(c) of CCR:
The Commissioner held that the appellant could not utilize Cenvat credit in excess of 20% of the service tax liability due to manufacturing exempted goods (IMFL) and rendering taxable IPS. However, the Tribunal found that alcoholic beverages, being non-excisable goods, do not fall under the definition of exempted goods as per rule 2(d) of CCR. Consequently, rule 6(3)(c) was not applicable, and the appellant could utilize the credit without the 20% ceiling.

5. Mutual Exclusivity of Service Tax and Sales Tax:
The appellant cited judgments from the Supreme Court and Tribunal to argue that service tax and VAT are mutually exclusive, and service tax is not leviable when sales tax is paid. They contended that the agreements reflected the intention to get IMFL manufactured by CBUs using their trademark, without transferring IPR. The Tribunal noted that the Commissioner had found the appellant eligible for Cenvat credit on advertising, and the credit earned under this head was substantial, leading to the conclusion that the impugned demand and penalties were not sustainable.

Conclusion:
The Tribunal ordered a complete waiver of pre-deposit and stay of recovery of the adjudged dues, finding prima facie that the impugned demand and penalties were not sustainable. The appellant's arguments on the non-applicability of rule 6(3)(c) of CCR and the mutual exclusivity of service tax and sales tax were acknowledged, and the admissibility of Cenvat credit on advertising and sales promotion services was upheld.