2011 (9) TMI 268 - AT - Service Tax

Pre-deposit of service tax and penalty of identical amount - Cenvat credit of duty in respect of courier service, telephone service, maintenance and expenditure service of their consignment agent - said services stand denied to Appellant s Jhotwara stock yard located in Jaipur - However he submits that no availment of credit was being done at the said Jhotwara stock yard - Appelant pleads that Misc. application for introduction of the said new ground be allowed and matter be remanded for verification of the above fact - Decided that no service tax credit stands availed by the appellant. If that is correct, the question of denial of the same does not arise and hence application for introducing the new ground - remand the matter to the Original Adjudicating Authority - Stay and appeal disposed off.

Summary

Issues:
- Denial of Modvat credit of duty in respect of various services availed by the appellant.
- Whether the appellant availed service tax credit.
- Request to dispense with the condition of pre-deposit of service tax and penalty.

Analysis:
1. The judgment concerns the denial of Modvat credit of duty in relation to courier service, telephone service, maintenance, and expenditure service of the consignment agent availed by the appellant between November 2003 to March 2008. The appellant sought to dispense with the pre-deposit condition of service tax and penalty amounting to Rs. 3,57,422/- each. The appellant contended that no credit was availed at their Jhotwara stock yard in Jaipur, which was not brought before the Adjudicating Authority or the First Appellate Authority initially. The appellant filed a miscellaneous application to introduce this new point, arguing that since no credit was availed at the Jhotwara stock yard, there should be no denial of the same.

2. The appellant's representative argued that as they were neither a manufacturer nor a service provider nor registered as Input Service Distributor (ISD), the credit availed was not in accordance with the law. The dispute primarily revolved around the factual position of whether the appellant availed service tax credit. The Tribunal noted that if no credit was indeed availed by the appellant, the question of denial of the same would not arise. Consequently, the Tribunal allowed the miscellaneous application to introduce the new ground, as it was crucial to the matter, and remanded the case to the Original Adjudicating Authority for verification of the factual position and subsequent decision-making.

3. In conclusion, the Tribunal set aside the impugned order and directed a remand to verify the factual position regarding the availing of service tax credit by the appellant. The stay petition and appeal were disposed of accordingly, emphasizing the importance of clarifying the factual aspect before making a final determination in the case.