2011 (5) TMI 770 - AT - Service Tax

Waiver of pre-deposit and stay of recovery - penalty - demand of duty is on account of denial of CENVAT credit on rent-a-cab service availed by the appellant - According to the appellant the service was used in connection with the business activities of the company and hence would qualify to be input service under Rule 2(l) of the CENVAT Credit Rules 2004 Held that - once the service tax is borne by the ultimate consumer of the service namely the worker the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. - proportionate credit to the extent embedded in the cost of food recovered from the employee/worker not allowed Ultratech Cement (2010 - TMI - 78203 - BOMBAY HIGH COURT) appeal is dismissed under the second proviso to sub-section (1) of Section 35B of the Central Excise Act stay application stands dismissed

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery regarding duty and penalty.
2. Eligibility of 'rent-a-cab' service as an 'input service' under CENVAT Credit Rules, 2004.
3. Claim of CENVAT credit based on the cost of transportation incurred by the company or employees.
4. Interpretation of the High Court's ruling on the manufacturer's right to claim CENVAT credit based on the Service Tax borne by the ultimate consumer.
5. Applicability of the High Court's decision in Ultratech Cement Ltd. case to the present scenario.
6. Admissibility of fresh evidence at the appellate stage.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for duty and penalty related to the denial of CENVAT credit on 'rent-a-cab' service. The service was used for employee conveyance and food transportation, claiming it as an 'input service' under CENVAT Credit Rules, 2004.

2. The authorized representative cited cases where CENVAT credit was allowed for similar services, supporting the appellant's claim. However, the learned DR argued that the right to claim CENVAT credit depends on whether the transportation cost was borne by the company or employees, citing the High Court's judgment in Ultratech Cement Ltd. case.

3. The High Court's decision emphasized that if the Service Tax was borne by the ultimate consumer, the manufacturer cannot claim credit for that portion. As the records lacked evidence of who bore the Service Tax on 'rent-a-cab' service, the appellant's claim was deemed invalid at this stage, as no fresh evidence was presented.

4. Consequently, the appeal was dismissed under the Central Excise Act, as the appellant failed to establish the eligibility for CENVAT credit based on the High Court's ruling and absence of supporting evidence. The stay application was also rejected, highlighting the importance of providing conclusive evidence at the appropriate stages of the proceedings.