2012 (3) TMI 124 - AT - Service Tax

CENVAT credit on courier services- service tax paid on Courier services used for transportation of samples of finished goods from the place of removal to buyer premise - credit on outward freight is admissible if the same is part of price of goods - the place of removal as defined under Sec.4 of the Central Excise Act, 1944 is a factory or any other place of production of goods -the credit of service tax on outward freight is admissible if the same is part of price of goods - held that -the credit was denied as the courier service is received after the clearance of goods from the factory gate therefore, the service relates to post clearance of the samples and nothing to do with the manufacture of samples - the applicants had not produced any evidence to show that the courier expenses are part of the price of the samples - directed to deposit an amount of Rs.10 lakhs within a period of eight weeks and a compliance report.

Summary

Issues:
1. Waiver of pre-deposit of duty, interest, and penalty.
2. Confirmation of demand for Cenvat credit of service tax paid by job work.
3. Denial of credit of service tax paid on courier services for transportation of samples.
4. Allegation of suppression of facts with intent to evade payment of duty.
5. Interpretation of place of removal under the Central Excise Act, 1944.
6. Admissibility of credit of service tax on outward freight.

Analysis:

1. The applicants sought waiver of pre-deposit of duty amounting to Rs.98,12,540/-, interest, and penalty. The demand of Rs.3,95,771/- was confirmed concerning Cenvat credit of service tax paid by job work. The contention was that the job worker wrongly paid the service tax, leading to the denial of credit. However, it was noted that the Revenue had accepted the duty paid by the job worker, indicating a strong case for the applicants regarding the demanded duty.

2. Another demand of Rs.94,16,769/- was confirmed after denying the credit of service tax paid on courier services used for transporting samples of finished goods. The applicants argued that the courier services were related to their final product as the samples were sent to customers through couriers after appropriate duty payment. The Revenue alleged suppression of facts to evade duty payment, invoking the extended period of limitation. However, as the applicants regularly filed returns showing the utilization of credit, the allegation of suppression was deemed unsustainable.

3. The Revenue contended that the courier services received post-clearance of goods from the factory gate did not relate to the manufacture of samples, justifying the denial of credit. The Tribunal observed that the applicants failed to demonstrate that the courier expenses were part of the price of samples. Citing a precedent, it was held that the applicants did not establish a case for a complete waiver of dues. Consequently, the applicants were directed to deposit Rs.10 lakhs within eight weeks, following which the remaining pre-deposit of duty, interest, and penalty would be waived, with recovery stayed during the appeal's pendency.

4. The judgment emphasized the importance of evidence and argumentation in establishing entitlement to waivers or credits under tax laws. It also highlighted the significance of timely compliance with legal obligations to avoid adverse consequences such as the denial of credits or imposition of penalties. The decision underscored the need for parties to present a strong case supported by factual and legal justifications to succeed in tax-related disputes before appellate tribunals.