2011 (1) TMI 506 - AT - Service Tax

Waiver of pre-deposit - Notification No.32/04-ST dt. 31/12/2004 - Commissioner has rejected the claim of the appellant that no further tax was due from DCL on the ground that the impugned instances of transportation did not qualify for the benefit of Notification No.32/04-ST - Rule 9(1)(f) of the Cenvat Credit Rules 2004 - cenvat credit disallowed and demanded also relates to credit taken on photocopies of duty paying documents as well as service tax paid on freight incurred for outward transportation - Decided in favour of the assessee by way of remand to Commissioner

Summary

Issues:
1. Waiver of pre-deposit of service tax, interest, and penalty.
2. Liability of service tax on GTA services availed by the appellant.
3. Dispute regarding availing benefit of Notification No.32/04-ST on transportation services.
4. Irregular cenvat credit availed by the appellant.

Issue 1:
The application sought waiver of pre-deposit of service tax, interest, and penalty amounts. The Tribunal decided to dispose of the appeal without further hearing and waived the condition of pre-deposit after hearing both sides on the stay petition.

Issue 2:
The appellant availed taxable services under the category GTA and incurred service tax liability. The parties argued that either the appellant or the GTA had discharged the service tax liability after availing abatement. The Tribunal noted that the Commissioner did not properly examine the argument that if the GTA had paid the tax, the recipient was not required to discharge the same liability. Referring to a Ministry of Finance clarification, the Tribunal remanded the demand to the Commissioner for a fresh decision.

Issue 3:
Regarding the dispute on availing the benefit of Notification No.32/04-ST on transportation services, the Tribunal found that the appellant had furnished a certificate from the transporter as required by the notification. The Tribunal noted that the certificate was not produced before the adjudicating authority and found merit in the claim of the assessee based on case laws. The Tribunal decided that this aspect of the dispute needed a second look.

Issue 4:
The dispute related to irregular cenvat credit availed by the appellant. The Tribunal found that the Commissioner did not examine if the documents corresponded to those specified in the Cenvat Credit Rules. The Tribunal noted that the appellant possessed original documents which were not produced before the adjudicating authority. The Tribunal set aside the impugned order and remanded the disputes to the Commissioner for fresh adjudication after hearing the appellant. The appeal was allowed by way of remand, and the stay petition was also disposed of.

This comprehensive analysis of the judgment covers all the issues involved, providing detailed insights into the Tribunal's decision on each matter.