2013 (9) TMI 924 - AT - Service Tax

Stay application - Utilization of Cenvat Credit for payment of service tax paid under Reverse charge mechanism - import of services - Held that - It is evident from Rule 5 of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 that Service Tax paid on the services provided from outside India and received in India are not to be treated as output services. - Prima facie, the appellant with whom CENVAT Credit is available in Cenvatable account is with respect to the activities being done in India and appellant is not provider of the services on which he is paying Service Tax under reverse charge mechanism. Therefore, the credit available with the appellant in its CENVAT account has not been earned in relation to the services received from abroad - prima facie case is against the assessee - stay granted partly.

Summary

Issues:
- Payment of Service Tax under reverse charge mechanism by debiting the amount from RG 23A maintained by the appellant.

Analysis:
The appellant filed a stay application against OIA No. SRP/18/STAY/DMN/2012-13 concerning the issue of payment of Service Tax under reverse charge mechanism by debiting the amount from RG 23A. The appellant argued, citing judgments by CESTAT and Karnataka High Court, that the CENVAT Credit account maintained by them can be utilized for duty liability under reverse charge mechanism. On the other hand, the Revenue contended that Rule 5 of the Taxation of Services Rules, 2006 specifies that Service Tax on services provided from outside India and received in India cannot be considered as output services for availing credit. The Revenue's stance was that duty under reverse charge mechanism must be paid in cash.

The Tribunal examined the arguments presented by both parties and reviewed the case records. It was observed that as per Rule 5 of the Taxation of Services Rules, Service Tax paid on services provided from outside India and received in India is not to be treated as output services. The Tribunal noted that the appellant, having CENVAT Credit available in their Cenvatable account, is not the service provider for the services on which they are paying Service Tax under reverse charge mechanism. Therefore, the credit in the appellant's CENVAT account was not earned in relation to services received from abroad.

The Tribunal concluded that the appellant did not establish a prima facie case for a complete waiver of the confirmed dues. Consequently, certain conditions were imposed on the appellant. The appellant was directed to deposit Rs. 3 lakhs in cash within eight weeks and report compliance to the Deputy Registrar by a specified date. Upon verification of the deposits, the file would be presented before the Bench. Subject to the payment of Rs. 3 lakhs, a stay was granted on the remaining amount and penalty imposed under the relevant order.

In summary, the Tribunal's decision highlighted the inapplicability of CENVAT Credit for Service Tax paid on services provided from outside India and received in India under the reverse charge mechanism. The appellant was required to make a cash deposit and comply with specified conditions for a partial stay on the outstanding amount and penalty.