2014 (1) TMI 773 - AT - Service Tax

Waiver of pre-deposit - Stay of recovery - Availment of inadmissible CENVAT credit - Erection, commissioning and installation service - Nexus between input and output service - Held that - goods manufactured by the appellant were sold at factory gate and that, under the Erection Contract, their customer brought the goods to the sites of installation of transmission lines. Again, it is not in dispute that inland transportation and transit insurance were also part of the Erection Contract. If that be so, the appellant should have included freight and the cost of insurance in the taxable value of erection, commissioning and installation service for the purpose of payment of service tax on this output service, but they did not do so. On the other hand, the appellant separately collected the service tax paid on freight and insurance, from PGCIL and therefore they were not entitled to claim CENVAT credit of such tax - Conditional Stay granted.

Summary

Issues:
- Waiver of pre-deposit and stay of recovery sought by the appellant regarding adjudged dues, including inadmissible CENVAT credit.
- Nexus between input services (transportation and transit insurance) and output service (erection, commissioning, and installation service) claimed by the appellant.
- Dispute over the inclusion of freight and insurance in the taxable value of the output service for service tax payment.
- Comparison with a previous Stay Order involving the same assessee and the willingness to make a pre-deposit.
- Decision on the pre-deposit amount and granting of waiver and stay for penalty and remaining CENVAT credit.

Analysis:
The appellant sought waiver of pre-deposit and stay of recovery concerning adjudged dues, including an amount demanded due to inadmissible CENVAT credit. The appellant argued a nexus between input services (transportation and transit insurance) and output service (erection, commissioning, and installation service) based on the Erection Contract. However, the department contended there was no real nexus as the appellant excluded freight and insurance from the taxable value of the output service for service tax calculation, shifting the burden to the customer under a separate invoice.

In a rejoinder, the appellant referred to a previous Stay Order favoring them on a similar issue of CENVAT credit denial related to GTA service. The appellant was willing to make a pre-deposit in proportion to the earlier case. The Tribunal noted that the goods were sold at the factory gate, and the customer was responsible for bringing the goods to the installation sites under the Erection Contract, which included transportation and insurance. Despite this, the appellant did not include freight and insurance costs in the taxable value for service tax payment but collected service tax separately from the customer.

Considering the submissions, the Tribunal found merit in the department's argument. The Tribunal highlighted the appellant's past payment towards a fair part of CENVAT credit in a similar case and the current offer to pre-deposit a reasonable amount. Consequently, the Tribunal directed the appellant to pre-deposit a specific sum within a set timeframe and report compliance. Upon compliance, the Tribunal granted waiver and stay for the penalty imposed and the remaining CENVAT credit and interest thereon, based on the totality of the case facts.

This judgment emphasizes the importance of establishing a clear nexus between input services and output services for claiming CENVAT credit, as well as the significance of including relevant costs in the taxable value for service tax calculation to avoid disputes and ensure compliance with tax regulations.