2012 (7) TMI 379 - AT - Service Tax

Non eligibility for cenvat credit on the input services for the period prior to the registration - Held that - As decided in J.R. Herbal Care India Limited v. CCE, Noida 2010 (3) TMI 391 (Tri) no provision in the rules that credit was not available to unregistered manufacturers. Manufacturers exempted from the registration do not cease to be a manufacturer of excisable goods. Therefore, in respect of the goods manufactured during the period when the appellant was not registered, credit can be taken subsequently also - in the case of clandestine removals, even if the duty is paid subsequently, cenvat credit on inputs used will be available to the assessee/manufacturer subject to the conditions that proper documents showing the payment of duty are available. If the appellant is eligible for cenvat credit, post registration, this availment or showing the account being credited by the service tax paid on input services, but not availing the same for the purpose of discharge of duty, would be more or less the same or an identical situation to indicate that as STP appellant is eligible for refund of underutilized credit - decided in favour of assessee.

Summary

Issues:
- Appellant seeking waiver of pre-deposit of service tax amount
- Eligibility of appellant for cenvat credit on input services pre-registration

Analysis:
1. The appellant filed a stay petition for the waiver of pre-deposit of service tax confirmed by the authorities and upheld by the first appellate authority, along with the imposition of penalty under Section 78 of the Finance Act, 1994.

2. The Tribunal found that the appeal could be disposed of promptly as it was a narrow issue. The application for waiver of pre-deposit was allowed, and the appeal was taken up for disposal.

3. The main issue revolved around the appellant's eligibility for cenvat credit on input services before obtaining registration. The revenue authorities contended that the appellant was not entitled to credit for the period pre-registration.

4. The appellant, being a Software Technology Park unit exporting software, availed cenvat credit post-registration, fulfilling all procedural requirements. The denial of credit was based on a technicality, which the appellant argued was covered by precedents like Well-known Polyesters Limited and other cases.

5. The revenue authority reiterated that the appellant could not have availed cenvat credit before registration as per Rule 3 of Cenvat Credit Rules, 2004. However, the Division Bench's decision in Well-known Polyesters Limited case supported the appellant's position that credit could be taken subsequently even for the period pre-registration.

6. The Division Bench's ruling established that manufacturers exempted from registration could still avail cenvat credit on goods manufactured during the unregistered period. The appellant's actions of recording service tax paid on input services post-registration indicated eligibility for refund of unutilized credit.

7. Consequently, the Tribunal held that the impugned order was set aside, granting relief to the appellant. The appeal was allowed in favor of the appellant, establishing their eligibility for cenvat credit on input services post-registration.