2012 (5) TMI 491 - AT - Service Tax

Waiver of pre-deposit of interest and penalty denial of utilisation Cenvat credit for payment of service tax on the Goods Transport Agency as recipient of the service Held that - Commissioner (Appeals) has dismissed the appeal for non-compliance to the provisions of Section 35F of the Central Excise Act without going into the merits of the Appeal. in the case of Nahar Industrial Enterprises Ltd. (2008 (10) TMI 38 (Tri)) whereby the payment of service tax from Cevant amount was upheld. order is set aside and the matter is remanded to the Commissioner (Appeals) to pass afresh order without insisting upon any pre-deposit. Appeal is disposed of by way of remand. Stay petition and appeal is allowed

Summary

Issues:
- Application for waiver of pre-deposit of interest and penalty
- Denial of utilization of Cenvat credit for payment of service tax on Goods Transport Agency
- Interpretation of Tribunal decisions in similar cases
- Requirement to pay Service Tax through cash instead of Cenvat credit for a specific period
- Dismissal of appeal for non-compliance with Section 35F of the Central Excise Act
- Upholding the payment of service tax from Cenvat credit in certain cases
- Setting aside the impugned order and remanding the matter for fresh consideration

Analysis:
The judgment dealt with an application for waiver of pre-deposit of interest and penalty where the demand was confirmed due to the denial of utilizing Cenvat credit for paying service tax on the Goods Transport Agency as the recipient of the service. The applicant argued that in similar cases, the demand was set aside, relying on decisions of the Tribunal and the High Court. The Revenue contended that a Tribunal decision required payment of Service Tax through cash, not Cenvat credit, for a specific period, justifying the demand. The Tribunal noted that the Commissioner (Appeals) did not address the merits of the appeal but dismissed it for non-compliance with Section 35F of the Central Excise Act.

In considering the conflicting interpretations of Tribunal decisions and the High Court's ruling upholding payment from Cenvat credit in specific cases, the Tribunal found it a fit case for a total waiver of the tax, interest, and penalty. The stay petition was allowed, setting aside the impugned order and remanding the matter to the Commissioner (Appeals) for a fresh decision without requiring any pre-deposit and after providing an opportunity for the appellant to be heard. The appeal was disposed of by way of remand, with the stay petition and appeal granted on the same terms. The Tribunal emphasized the need for a thorough review of the merits of the appeal without insisting on any pre-deposit, ensuring fairness and due process in the adjudication process.