2011 (9) TMI 675 - AT - Service Tax

Whether payment of Service Tax on GTA Service can be made by utilizing Cenvat Credit - Assessee relied on Nahar Industries(Tri-Delhi) - Revenue decision applicable only till 19.04.06 - Held That - Deposit of 50% of duty involved recovery of balance amount stayed during the pendency of the appeal

Summary

Issues:
Demand of Service tax based on utilization of Modvat credit, interpretation of legal fiction for service provider status, financial hardship plea.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi dealt with the confirmation of a demand of Service tax against the appellant amounting to Rs. 45,38,670. The issue arose from the appellant utilizing accrued Modvat credit for payment of Service tax on GTA services received between Jan. 2005 to Feb. 2008, instead of paying in cash. The appellant argued that such utilization was lawful, citing precedents including a decision by the Punjab & Haryana High Court. The Revenue contended that post-April 19, 2006, the legal fiction designating the service recipient as a service provider was removed, making the use of credit for service tax payment unlawful post that date.

The Tribunal acknowledged the earlier decisions supporting the appellant's position for the period before April 19, 2006, when the legal fiction was in place. However, post the deletion of the Explanation on that date, the appellant, despite receiving GTA services, could not be considered a service provider. The Tribunal found merit in the Revenue's argument regarding the change in legal provisions and held that the appellant's use of credit for tax payment post-April 19, 2006, was not in accordance with the law.

Despite the ruling against the appellant, the Tribunal noted the absence of a plea for financial hardship. Consequently, the Tribunal directed the appellant to deposit 50% of the duty within 8 weeks, with the pre-deposit of the remaining amount and any penalty being waived. The recovery of the balance amount and penalty was also stayed during the pendency of the appeal, with a compliance report scheduled for December 19, 2011.