2011 (6) TMI 98 - AT - Service Tax

Cenvat credit of service tax - As per the decision of the Hon ble High Court of Punjab and Haryana in the case of M/s. V.G. Steel Industry Vs. CCE (2011 -TMI - 204314 - Punjab and Haryana High Court) where it has been held that when duty was paid in excess of what was payable, CENVAT credit cannot be denied unless the excess duty paid has been refunded - The appeal is allowed and the stay application also stands disposed of.

Summary

Issues Involved:
1. Eligibility of service tax credit for transportation charges paid for rail transport prior to 1.5.2006.

Analysis:
The appellants entered into a contract with transport agencies to carry copper anodes from Tuticorin to Silvasa during March-April 2006, paying Rs.85,51,033/- towards transportation charges and Rs.2,25,702/- as service tax. The Department contended that rail transport was not taxable for service tax before 1.5.2006, challenging the appellants' eligibility for service tax credit on non-taxable services. The appellants argued that they contracted for road transport, but due to a transport strike, the goods were carried by rail partly, justifying their service tax credit claim based on the tax amount paid. The Department and appellants agreed that rail transport was not taxable pre-1.5.2006, making the service tax payment of Rs.2,25,702/- unnecessary. However, the appellants took credit under the belief of its availability, with no revenue loss to the exchequer. The judgment cited a High Court decision where excess duty payment didn't bar CENVAT credit unless refunded, supporting the appellants' position.

The judgment concluded that since the appellants only took credit for an amount mistakenly paid, which wasn't due to the exchequer, no demand could be upheld against them. The decision aligned with the High Court ruling that excess duty payment didn't preclude credit unless refunded. Consequently, the demand, interest, and penalty were set aside, allowing the appeal and disposing of the stay application.