2011 (3) TMI 775 - AT - Service Tax

Waiver of pre deposit - Cenvat credit on construction of immovable property - Prima facie, this argument is not acceptable because coal shed is where coal is stored and are prima facie covered by services of input service under Rule 2-l(ii) - When the definition specifically includes services relating to setting up of factory, credit on such services cannot be denied prima facie based on the argument that factory is an immovable property - Stay granted.

Summary

Issues:
1. Availing credit on service tax paid on construction services for constructing a coal shed.
2. Interpretation of the definition of "input service" under Rule 2-l(ii) in relation to setting up and repair of factory.
3. Denial of credit based on the service being used for creating an immovable property.
4. Nexus between the coal shed and the manufacture of sponge iron.
5. Prima facie case for waiver of duty demanded.

Analysis:

1. The Applicant availed credit on service tax paid on construction services for building a coal shed in their factory for manufacturing sponge iron. The Counsel argued that the definition of "input service" includes services related to setting up and repair of a factory, as per Rule 2-l(ii).

2. The Department contended, based on the findings of the Commissioner (Appeals), that the service in question was used for creating an immovable property, citing a precedent. However, the Tribunal noted that the dispute was about the definition of "input service," distinct from the term "inputs" as defined in the Cenvat Credit Rules, 2004.

3. Upon considering both arguments, the Tribunal found that the coal shed, where coal is stored, falls under services of input service as per Rule 2-l(ii). The Tribunal disagreed with the Department's view that the coal shed had no relevance to the manufacture of sponge iron. It was observed that the definition of "input service" explicitly includes services related to setting up a factory, making the denial of credit based on the immovable property argument unacceptable.

4. The Tribunal concluded that the appellants had established a strong prima facie case for the waiver of the duty demanded. Consequently, the pre-deposit of dues arising from the appeal's order was waived for admission, and the recovery of such dues was stayed during the appeal's pendency.

This judgment highlights the importance of a thorough analysis of the definitions and provisions under the relevant rules in tax matters, emphasizing the need to consider the specific language and scope of the law before denying credit or imposing duties.