2013 (11) TMI 872 - AT - Service Tax

CENVAT Credit - Cargo handling service - Held that - When tax is not paid on a service, it has to be considered as an exempted service in view of definition at Rule 2 (e) of CCR 2004 and consequently provisions of Rule 6 will apply in the instant case - Since no service tax is being paid on service relating to export cargo, it has to be considered as exempted service within the meaning of Rule 2(e) of CCR 2004 - Prima facie case not in favour of assessee - Assessee directed to make a pre deposit - stay granted partly.

Summary

Issues:
1. Whether the applicant is liable to pay service tax under cargo handling service for using forklifts and cranes from another agency.
2. Whether the applicant should have complied with Rule 6 of CENVAT Credit Rules, 2004 for utilizing service tax credit on both exempted and taxable services.
3. Interpretation of the definition of exempted service under Rule 2(e) of CCR 2004 in relation to cargo handling for export goods.

Detailed Analysis:
1. The applicant, engaged in cargo handling, utilized forklifts and cranes from another agency for which service tax was paid under the category of 'supply of tangible goods'. The Revenue contended that since the applicant also handled export cargo, considered an exempted service, they should have followed Rule 6 of CENVAT Credit Rules, 2004. Consequently, show cause notices were issued for recovery of unauthorized CENVAT credit. After adjudication and appeal, an amount was confirmed against the applicant along with interest and penalty.

2. The counsel for the applicant argued that cargo handling for export goods was excluded from the definition of cargo handling service under section 65(23), thus not constituting an exempted service. Referring to Rule 2(e) of CCR 2004, which defines exempted services, the counsel contended that taxing a service beyond the credit taken was legally unsustainable. The Revenue, however, maintained that any service on which service tax is not paid is considered an exempted service under Rule 2(e) of CCR 2004, including services related to export cargo.

3. The Tribunal considered the arguments from both sides and acknowledged the Revenue's position that services on which no service tax is paid are to be deemed exempted services under Rule 2(e) of CCR 2004. Consequently, the provisions of Rule 6 were held to be applicable in this case. The Tribunal directed the applicant to make a pre-deposit, considering the lack of full facts on credit taken and related figures submitted by either side. A pre-deposit amount was specified, and subject to compliance, the balance dues from the order were waived with a stay on collection during the appeal's pendency.