2011 (7) TMI 930 - AT - Service Tax

Waiver of pre-deposit - GTA service - Circular No. 97/8/2007 dated 23.8.2007 - In this case Tribunal held that during the period prior to 19.4.2006 irrespective of whether a person provided taxable service and/or manufactured dutiable final products or did not provide any taxable service or manufactured any dutiable final products, he was required to pay the service tax on the GTA service received by them in cash, not through Cenvat credit - Held that the issue raised by the Revenue requires re-consideration by the Commissioner (Appeals) afresh. Hence the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the Respondent

Summary

Issues:
1. Dispute regarding the credit of Service Tax taken by the Appellants.
2. Interpretation of the definition of Output Service under Cenvat Credit Rules, 2004.
3. Validity of utilizing credit for payment of Service Tax on Business Auxiliary Service.
4. Compliance with Rule 3(1) of Cenvat Credit Rules, 2004.
5. Applicability of legal fiction in determining service tax liability.

Analysis:

1. The Appellate Tribunal considered an Appeal filed by the Revenue against the order of the Commissioner (Appeals) concerning the credit of Service Tax taken by the Appellants. The dispute revolved around the Appellants' claim to credit for tax paid on GTA service and its utilization for paying Service Tax on commission to a foreign agent for export orders. The Commissioner (Appeals) found the Appellants' argument valid based on the explanation in Rule 2(p) of the Cenvat Credit Rules, 2004. The Commissioner held that the credit taken by the Appellants was in order and set aside the impugned order.

2. The Revenue contended that the Appellants, as manufacturers of an exempted final product not providing any taxable service, were not eligible for the credit on GTA services under Rule 3(1) of the Cenvat Credit Rules, 2004. The Revenue emphasized that the Appellants, despite falling under the legal fiction of being liable to pay service tax, were not actual Output Service providers. The Revenue relied on a circular and a Tribunal decision to support its argument that the service tax liability on commission paid to foreign agents should be discharged in cash.

3. The Tribunal found that the issue raised by the Revenue required reconsideration by the Commissioner (Appeals) and remanded the matter for fresh consideration. The Tribunal directed the Commissioner to provide an opportunity for the Respondent to be heard, thereby allowing the Appeal by way of remand. The decision highlighted the need for a reevaluation of the interpretation of Output Service and the eligibility for credit under the Cenvat Credit Rules, 2004.

Overall, the judgment delves into the nuances of Service Tax credit, Output Service definitions, and the correct application of Cenvat Credit Rules, 2004. The Tribunal's decision to remand the matter for further consideration underscores the complexity of the legal issues involved and the importance of a thorough review in such cases.