2013 (11) TMI 866 - AT - Service Tax

CENVAT Credit - Penalty u/s 78 - Held that - Applicant had availed the CENVAT Credit of Rs.54.40 lakh on the invoices in the name of their Head Office, whereas the Head Office was not registered as an Input Service Distributor, as required under the relevant provisions of CENVAT Credit Rules, 2004. Regarding the amount of Rs.55,22,860/-, prima facie, we find that the said Service Tax demand is confirmed against the Applicant by including the re-imbursement expenditure in the gross taxable services received from their clients under Rule 5(1) of the Service Tax Valuation Rules, 2006. We find that the said Rule has been struck down by the Hon ble High Court in the Inter-Continental case (supra). Accordingly, the Applicant could able to make out a case for total waiver of predeposit of the said amount of Rs.55,22,860/-. On the other hand, prima facie, we find that the laid-down procedure has not been followed by the Applicant in availing CENVAT Credit on the input invoices raised in the name of Head Office - Prima facie not in favour of assessee - Stay granted partly.

Summary

Issues: Application for waiver of preposit of Service Tax and penalties imposed under various provisions of the Finance Act, 1994.

Analysis:
1. The Applicant sought a waiver of preposit of Service Tax amounting to Rs.1.14 crore and the penalty imposed under Section 78 and Rule 15 of the CENVAT Credit Rules, 2004, along with other penalties. The Advocate for the Applicant acknowledged that a portion of the amount, Rs.54,40,876/-, was related to availing CENVAT Credit on invoices meant for the Head Office but utilized by regional offices without the Head Office being registered as an Input Service Distributor. The Advocate offered to deposit 10% of this amount. The remaining Rs.55,22,860/- was linked to the levy of Service Tax on reimbursement expenditure, which the Department included in the gross taxable value under Rule 5(1) of the Service Tax Valuation Rules, 2006. The Advocate cited a judgment of the Hon'ble Delhi High Court declaring Rule 5 of the Valuation Rules as ultra vires Sections 66 and 67 of the Finance Act, 1994.

2. The Advocate for the Revenue reiterated the Commissioner's findings but failed to present any decision contradicting the judgment of the Hon'ble Delhi High Court in the Inter-Continental Consultants & Technocrafts case. Upon hearing both parties and examining the records, the Tribunal observed that the Applicant had indeed availed CENVAT Credit without the Head Office being registered as an Input Service Distributor, as required by the CENVAT Credit Rules, 2004. Regarding the amount of Rs.55,22,860/-, the Tribunal noted that the Service Tax demand was confirmed by including reimbursement expenditure in the gross taxable services, as per Rule 5(1) of the Service Tax Valuation Rules, 2006. However, the Tribunal acknowledged that the said Rule had been invalidated by the Hon'ble High Court in the Inter-Continental case. Consequently, the Tribunal found merit in waiving the predeposit of Rs.55,22,860/-. On the other hand, the Tribunal directed the Applicant to deposit 10% of the CENVAT Credit amount within a specified timeframe due to non-compliance with the prescribed procedure. Upon compliance, the balance of the dues would be waived, and recovery stayed during the pendency of the Appeal.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, relevant legal provisions, and the Tribunal's decision, providing a comprehensive understanding of the case.