2012 (11) TMI 739 - AT - Service Tax

Service tax liability on the GTA services - recipient of the services - payment of service tax utilizing cenvat credit Held that - Appellant is not providing output services as categorized in Rule 2(p) of the Cenvat Credit Rules, 2004, debiting the said amount in the Cenvat account needs to be rectified by directing the appellant to debit or pay the entire amount invoked in both the appeals as service tax paid for receipt GTA services through PLA or by TR-6 challan - appellant is eligible to avail the Cenvat credit which he has debited during the relevant period, towards discharge of service tax liability. Interest liability Held that - No intention to run away from the service tax liability and having deposited the same through the Cenvat account, the appellant has not retained any part of the government dues with him with intention to evade the same. Accordingly, the interest liability as confirmed by the lower authorities does not arise at all Penalty Held that - Appellant having discharged the service tax liability through Cenvat account - penalties imposed by the lower authorities set aside

Summary

Issues:
Waiver of pre-deposit, Utilization of Cenvat credit for service tax liability on GTA services, Interest liability, Penalty under Section 76 of the Finance Act, 1994.

Waiver of Pre-deposit:
The appellant sought waiver of pre-deposit for the amounts confirmed by the adjudicating authority and upheld by the first appellate authority. The Tribunal noted a previous unconditional stay granted in a similar case and allowed the applications for waiver. The appeals were taken up for disposal as the issue in both appeals was the same.

Utilization of Cenvat Credit for Service Tax Liability on GTA Services:
The appellant received GTA services during April 2008 to March 2009 and used Cenvat credit on input services to discharge the service tax liability on GTA services. The Revenue contended that the appellant should have paid the service tax liability in cash and not utilized the Cenvat credit. The issue was whether the appellant, as the recipient of GTA services, could use Cenvat credit for service tax liability.

Interest Liability:
The Tribunal analyzed the interest liability confirmed by the lower authorities. It referred to a previous case and concluded that as the appellant had not retained any government dues with the intention to evade payment, the interest liability did not arise. The interest liability on the amounts in the appeals was set aside.

Penalty under Section 76 of the Finance Act, 1994:
The penalties imposed by the lower authorities under Section 76 were found not to apply as the appellant had discharged the service tax liability through the Cenvat account. Therefore, the penalties were deemed unwarranted and set aside.

In conclusion, the Tribunal rejected the appellant's claim to use Cenvat credit for service tax liability on GTA services and directed payment through PLA/TR-6 challan. The interest and penalties imposed by the lower authorities were set aside. The appeal against imposition of interest and penalty was allowed, while the appeal regarding Cenvat credit utilization was rejected.