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2013 (9) TMI 355 - AT - Service TaxValue of Export Cargo Handling Service - Duty demanded in terms of Rule 6(3) of the CCR, 2004 - CENVAT credit on telephone service and repair/maintenance - Held that - There was no evidence on record of the two services having been used in or in relation to the rendering of output services - The expression exempted services covers not only the services taxable under Section 66 of the Act, which were fully exempt from service tax by some exemption notification issued under Section 93, but also those services which are not taxable under Section 66 of the Act. In view of the wordings of Rule 2(e) of Cenvat Credit Rules, 2004, the services, in question, have to be treated as exempted services . BHEL-GE TURBINE SERVICE PVT. LTD. Versus COMMR. OF C. EX., HYDERABAD 2009 (12) TMI 407 - CESTAT, BANGALORE - Where there was a final order holding that even services on which no service tax was leviable under Section 66 were also to be treated as exempted services , the same had to be followed as precedent - the appellant had not made out a prima facie against demand in respect of export cargo handling service - CENVAT credit was denied on the telephone services - The case of the Revenue was that the telephone was installed in the premises of one of the partners of the appellant and had not been shown to have been used by the appellant for providing any output services - CENVAT credit had also been denied on repairs/maintenance of a car which was claimed to have been used for business purposes. The Revenue had set up a similar case vis-a-vis the CENVAT credit claimed by the appellant on repairs/maintenance of vehicle. Waiver of Pre-deposit - The appellant failed to make out a prima facie case on merits - They were directed to pre-deposit an amount of Rs.1,36,989/- upon such submission rest of the duty to be waived till the disposal.
Issues:
1. Waiver and stay sought for adjudged dues related to export cargo handling service and CENVAT credit on telephone service and vehicle maintenance. Analysis: 1. The appellant provided taxable services, including cargo handling, during the material period, which included handling of export cargo and supply of tangible goods. The department considered these as exempted services due to lack of separate accounts for common input services. A demand of Rs.91,519/- (8% of service value) for export cargo handling and tangible goods services, and denial of Rs.45,470/- CENVAT credit for telephone service and vehicle maintenance, was made. The appellant challenged the demand citing a stay order in a previous case, arguing that exempted services should not include those not taxable under Section 66 of the Finance Act, 1994. The department contended that exempted services encompass all services not taxable under Section 66, as per Rule 2(e) of CCR, 2004. The Tribunal upheld the demand based on precedent and lack of evidence showing the services' use in output services. 2. The Tribunal referred to a previous case where it was held that services not taxable under Section 66 are also considered exempted services under Rule 2(e) of CCR, 2004. Despite the appellant's arguments against this interpretation, the Tribunal found no prima facie case against the demand for export cargo handling service. Additionally, CENVAT credit was denied for telephone services and vehicle maintenance, as the appellant failed to demonstrate their use in output services. The Tribunal emphasized the lack of evidence supporting the appellant's claims, leading to a directive for pre-deposit of the disputed amount within a specified timeline for further proceedings. 3. The Tribunal concluded that the appellant failed to establish a prima facie case on merits regarding the disputed dues. As a result, the appellant was instructed to pre-deposit the specified amount within six weeks and report compliance. Upon compliance, waiver and stay were granted for the penalties imposed, subject to the conditions outlined in the order. The decision highlighted the importance of substantiating claims with evidence in matters concerning tax liabilities and credits to ensure fair adjudication and compliance with legal provisions.
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