2012 (5) TMI 351 - AT - Service Tax

Cenvat credit for payment of Service Tax on the GTA service - appeal of the Revenue before Hon ble Punjab & Haryana High Court stand decided and vide its decision reported in (2011 (5) TMI 779 (HC)) the same stand rejected. - Earlier order of dismissal recalled - Credit allowed.

Summary

Issues:
1. Restoration of appeal dismissed due to a defect pointed out by the Registry.
2. Precedent decision on the issue of pre-deposit of Service Tax.
3. Dispute regarding denial of Cenvat credit for payment of Service Tax on GTA service.
4. Review of original adjudicating authority's decision by Commissioner.
5. Status of appeal before the Hon'ble Punjab & Haryana High Court.
6. Decision of the Hon'ble Himachal Pradesh High Court supporting the stand.

Issue 1: Restoration of appeal dismissed due to a defect:
The Tribunal allowed the application for restoration of the appeal that was dismissed due to a defect not being rectified by the appellant. The appellant had since removed the defect, leading to the order of dismissal being recalled, and the appeal restored to its original number.

Issue 2: Precedent decision on pre-deposit of Service Tax:
The Tribunal noted that the issue was covered by a precedent decision. After waiving the pre-deposit condition of Service Tax and penalty, the Tribunal proceeded to decide the appeal itself.

Issue 3: Dispute over denial of Cenvat credit for Service Tax on GTA service:
Proceedings were initiated against the appellant for denying the use of Cenvat credit for paying Service Tax on the GTA service received. The original adjudicating authority dropped the demand based on a Tribunal judgment. However, the Commissioner reviewed this decision, setting it aside and upholding the demand and penalty due to the Tribunal's decision not attaining finality.

Issue 4: Review by Commissioner and status of appeal:
The Commissioner's order was challenged, citing the pending appeal before the Hon'ble Punjab & Haryana High Court. The Tribunal noted that the High Court had rejected the Revenue's appeal, thereby settling the issue. Additionally, a decision by the Hon'ble Himachal Pradesh High Court supported this stand.

Issue 5: Decision and relief to the appellant:
In light of the settled issue by the High Court decisions, the Tribunal set aside the Commissioner's order, restored the Joint Commissioner's order, and allowed the appeal with consequential relief to the appellant.

Conclusion:
The Tribunal disposed of the ROA application, stay petition, and appeal in accordance with the decisions and precedents discussed, providing relief to the appellant based on the settled legal positions.