2012 (7) TMI 745 - AT - Central Excise

Disallowance of cenvat credit towards service tax on insurance premium paid - authorities opined that the evidence relating to payment of insurance was not in the name of the appellant and service tax paid in respect of clearing and forwarding service by Yadav Associates also does not relate to the appellant Held that - Appellant has evidence to show payment of service tax, on the insurance policy taken against the goods in question - Department is required to find out whether the service tax was realised by M/s Yadav Associates and if so, whether paid to the treasury - Original authority has to be satisfied that requirement of Rule 9(5) of the Cenvat Credit Rules is fulfilled and service tax paid was relating to input service that was ultimately used in manufacture of excisable goods - matter is remitted back to the Original authority

Summary

Issues: Disallowance of cenvat credit on insurance premium and business auxiliary service

Insurance Premium Disallowance:
The dispute involved disallowance of cenvat credit on insurance premium and business auxiliary service availed by the appellant. Both authorities held against the appellant, stating lack of evidence supporting eligibility for the service tax credit. The authorities found that the evidence did not establish the appellant's entitlement to the credit, as the insurance payment was not in the appellant's name and the service tax paid did not relate to the appellant's transactions. The appellant argued that evidence, including agreements and bank statements, proved the import of coal and payment of insurance premium, thus challenging the disallowance of the cenvat credit on insurance premium.

Business Auxiliary Service Disallowance:
Regarding the disallowance of cenvat credit on business auxiliary service, the appellant's counsel presented evidence demonstrating the working methodology with the clearing and forwarding agent, M/s. Yadav Associates. The appellant contended that the evidence in the appeal folder confirmed the appellant's involvement in the transactions and the payment of service tax, thus disputing the disallowance of the cenvat credit on business auxiliary service. The appellant also argued acting under a bona fide belief of admissibility of the cenvat credit, asserting no penal consequence should apply, and highlighted the absence of suppression of facts and the time-barred nature of the proceedings.

Analysis and Directions:
The Tribunal heard arguments from both sides and examined the records. It noted that the burden of proof regarding the use of input services in the manufacture and clearance of excisable goods had not been adequately addressed by the authorities below. The Tribunal directed the Original Authority to thoroughly examine the evidence related to insurance premium payment and the clearing and forwarding agent service to determine the eligibility for cenvat credit. The Original Authority was instructed to verify the payment of service tax by the agent to the treasury and ensure the appellant's compliance with Rule 9(5) of the Cenvat Credit Rules. The matter was remitted back to the Original Authority for a detailed and reasoned decision, considering the appellant's defense and the materials on record. The Tribunal also highlighted the need for the Original Authority to assess the time bar issue and the validity of the appellant's claims, with appropriate consideration of any penalties. The appellant's reliance on a previous decision was acknowledged, but the Tribunal emphasized that the adjudicating authority should focus on the present case's specifics during the reassessment.