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2011 (7) TMI 240 - AT - Service TaxWaiver of pre-deposit - cenvat credit on Courier service and GTA - Rule 2 (l) of CCR, 2004 - Held that - notwithstanding the judgment of Hon ble Karnataka High Court in case of ABB Ltd. vs. CCE & ST, Bangalore (2011 -TMI - 203985 - KARNATAKA HIGH COURT), on the issue as to whether during the period prior to 1/3/08 Cenvat credit of service tax paid on outward freight was available, when the sales were not on FOR destination basis and the freight was not part of the assessable value the Department still has a good arguable case. In this case, the appellant have not produced any evidence to show that the assessable value of the goods included the courier charges for despatching the same to the customers. - this is not a case for total waiver from the requirement of pre-deposit.
Issues Involved:
1. Eligibility for Cenvat credit of service tax paid on courier services used for dispatching final products. 2. Interpretation of 'input service' under Rule 2(1) of Cenvat Credit Rules, 2004. 3. Applicability of judgments and circulars regarding outward transportation as 'input service'. 4. Requirement of pre-deposit for hearing the appeal. Issue-wise Detailed Analysis: 1. Eligibility for Cenvat Credit on Courier Services: The appellant, engaged in manufacturing automobile parts, availed Cenvat credit on service tax paid for courier services used to dispatch final products to customers. The department contended that such courier services, being outward freight from the place of removal, do not qualify as 'input service' under Rule 2(1) of the Cenvat Credit Rules, 2004 (CCR, 2004). Consequently, a show cause notice was issued demanding reversal of the Cenvat credit along with interest and penalty. 2. Interpretation of 'Input Service' Under Rule 2(1) of CCR, 2004: The definition of 'input service' prior to 1/3/08 included services used for clearance of final products from the place of removal. The appellant argued that courier services fall within this definition, citing the Larger Bench judgment in ABB Ltd. vs. CCE & ST, Bangalore, which held that outward transportation from the place of removal qualifies as 'input service'. Post 1/3/08, the definition was amended to exclude clearance from the place of removal, and the appellant reversed the Cenvat credit for this period. 3. Applicability of Judgments and Circulars: The appellant relied on the ABB Ltd. judgment, which was upheld by the Karnataka High Court, to support their claim. They also referenced other Tribunal decisions supporting the eligibility of courier services for Cenvat credit. The department countered with the Tribunal's decision in India Cements Ltd. vs. CCE, Trichy, which held that outward transportation services were not 'input services' prior to 1/3/08. Additionally, the department cited a CBEC Circular clarifying that outward transportation qualifies as 'input service' only if the sale is on FOR destination basis, which includes freight charges in the assessable value. The appellant did not provide evidence that their sales met these conditions. 4. Requirement of Pre-deposit: Given the conflicting interpretations and the appellant's failure to establish that the courier charges were included in the assessable value, the Tribunal concluded that the department had a good arguable case. Applying the principles from Supreme Court judgments in Benara Valves Ltd. vs. CCE and Indu Nissan Oxo Chemicals Industries Ltd. vs. Union of India, the Tribunal decided that the appellant must make a pre-deposit of Rs. 75,00,000 within eight weeks. This amount, along with the already deposited Rs. 88,11,749 and interest of Rs. 5,41,563, would suffice to waive the remaining pre-deposit requirement and stay recovery until the appeal's disposal. Conclusion: The Tribunal directed the appellant to deposit Rs. 75,00,000 within eight weeks while waiving the balance pre-deposit requirement and staying recovery until the appeal's final decision. The judgment emphasized the need for evidence to support claims of including courier charges in the assessable value and highlighted the importance of adhering to the legal interpretations and circulars governing Cenvat credit eligibility.
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