2014 (2) TMI 332 - AT - Service Tax

Cenvat Credit availed after lapse of long period - Benefit of Notification No. 12/2003 - appellant submits that the credit was utilized for payment of service tax on output service and that the benefit of Notification No. 12/2003 ST was not claimed while paying such tax on output service and therefore the utilization of CENVAT credit is unquestionable Held that - The issue was itself highly debatable and this debate can be had at the final hearing stage - in the invoices pertaining to output services viz. warranty services, maintenance services and installation services, the service charges and the cost of materials were separately shown and service tax was paid on the service charges and therefore it could be reasonably presumed that the benefit of Notification No. 12/2003 ST was availed by the assessee. - stay allowed partly.

Summary

Issues:
1. Appellant seeks waiver of pre-deposit and stay of recovery for adjudged dues.
2. Denial of CENVAT credit of CVD paid on imported spares.
3. Dispute regarding utilization of CENVAT credit for payment of service tax on output service.
4. Demands related to CENVAT credit under Rule 6(3A) and Trading Activity.
5. Stay Order passed in a previous case by the same bench.
6. Quantification of demands and pre-deposit amount determination.

Analysis:

1. The appellant sought waiver of pre-deposit and stay of recovery for various adjudged dues, including CENVAT credit amounts. Regarding the denial of CENVAT credit of CVD paid on imported spares, the appellant claimed to have paid a significant amount prior to adjudication, which was not seen appropriated. The dispute arose over the balance amount of CENVAT credit of CVD, with arguments presented by both sides regarding the utilization of this credit for service tax payment on output service.

2. The appellant's counsel argued that the credit was utilized for service tax payment without claiming the benefit of a specific notification, while the Commissioner contended that the credit was taken suddenly after a long period without proper documentation. The issue of whether the benefit of the notification was availed by the appellant was considered debatable and left for further discussion at the final hearing stage.

3. The demands related to CENVAT credit under Rule 6(3A) and Trading Activity, totaling nearly Rs. 27 crores, were discussed. The appellant referenced a previous Stay Order by the same bench in a related case, suggesting a case against the quantification of these demands. It was determined that the appellant should pre-deposit a specific amount within a set timeframe, with waiver and stay granted for the remaining balance of CENVAT credit, interest, and penalties, subject to compliance.

4. The judgment emphasized the pre-deposit requirement of Rs. 52 lakhs by the appellant within a specified period, with instructions for reporting compliance. The decision ensured waiver and stay for the balance amount of CENVAT credit, interest, and penalties, contingent upon the pre-deposit. The appropriateness of the pre-deposit amount was based on the arguments presented by both parties and the previous rulings by the bench.