2013 (9) TMI 359 - AT - Service Tax

CENVAT credit - Dredging Service - The appellant was rendering dredging service during the entire period - Whether, for the period from 16/06/2005 to 17/04/2006 the appellant should pay service tax at the rate of 12% - Held that - Prima facie from the documents, it appeared that an endeavour was made by the party before the adjudicating authority to prove that the entire dredging activity pertaining to the aforesaid demand of service tax of was undertaken prior to 18/04/2006 the demand arises out of denial of CENVAT credit to the said extent taken by the assessee and utilized for payment of service tax - According to the Revenue, the appellant was not entitled to take such credit on the capital goods which were procured after 10/09/2004 and were found in stock as on 16/06/2005 in the absence of enabling provisions. Waiver of Pre- deposit Period of Limitation - Prima facie case for the appellant on merits was not found - the claim of the appellant was not supported by any specific provision of law - The show-cause notice specifically invoked the proviso to Section 73(1) of the Finance Act, 1994 for recovery of service tax by alleging mis-statement of facts with intent to evade payment of service tax, it did not raise any such allegation to invoke the said proviso for recovery of the amount It is not in dispute that the entire demand was for the extended period - the plea of limitation was, prima facie, tenable - there would be waiver and stay as prayed.

Summary

Issues:
1. Demand for service tax on dredging service for a specific period.
2. Demand for service tax on irregular availment of CENVAT credit on capital goods.

Analysis:

Issue 1: Demand for service tax on dredging service
The appellant sought waiver and stay for a demand of Rs.90,59,361/- for the period from 16/06/2005 to 17/04/2006 on dredging service. The appellant contended that they should pay service tax at the rate of 10% for the mentioned period, not 12%, as claimed by the Revenue. The appellant argued that the dredging activity was completed before the rate change date. The appellant provided documentary evidence and relied on a Delhi High Court judgment stating that the tax rate applies at the time of service provision, not payment receipt. The Tribunal found a prima facie case in favor of the appellant based on the evidence presented and the High Court's ruling, granting waiver and stay on the demand and connected penalties.

Issue 2: Demand for service tax on irregular CENVAT credit
Regarding the demand of Rs.61,90,846/- for irregular CENVAT credit, the Revenue contended that the appellant was not entitled to credit on capital goods procured after a specific date and found in stock on another date. The appellant argued that Rule 3(1) of the CENVAT Credit Rules, 2004 allowed them to take such credit. The Revenue highlighted the absence of provisions for stock exceptions for capital goods under Rule 3. The Tribunal did not find a prima facie case for the appellant on merits as the claim lacked legal support. The appellant raised a plea of limitation, stating that the show-cause notice did not invoke the extended period for demanding service tax. The Tribunal found this plea prima facie tenable as the notice did not mention the extended period for the demand, leading to waiver and stay of the demand.

In conclusion, the Tribunal granted waiver and stay for the demand related to the dredging service based on the evidence presented and legal precedent, while denying the same for the demand related to irregular CENVAT credit due to lack of legal support and a valid plea of limitation.