2014 (2) TMI 706 - AT - Service Tax

Waiver of the pre-deposit - Availment of ineligible cenvat credit - Held that - if an assessee makes the payment of the invoices which indicate service tax payable and avail the Cenvat credit, the activity or the action of service provider or not depositing the same in the Government Treasury will not bar the service recipient from taking Cenvat credit on the service tax paid, if eligible - appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved. Accordingly, the application for the waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.

Summary

Issues involved:
Waiver of pre-deposit of duties confirmed as ineligible Cenvat credit.

Analysis:
The issue in this case pertains to the waiver of pre-deposit of duties confirmed as ineligible Cenvat credit. The appellant had availed Cenvat credit for services received from a service provider who had collected service tax but failed to deposit it in the Government Treasury. The Revenue sought reversal of the Cenvat credit on this ground. However, the judge observed that the appellant had made payment based on invoices indicating service tax and was eligible for Cenvat credit, regardless of the service provider's actions. The judge concluded that the appellant had made a prima facie case for the waiver of pre-deposit, and thus, allowed the application for waiver and stayed the recovery until the appeal's disposal.

In his order, the judge noted that the appellant had availed Cenvat credit for services received from a service provider who had collected service tax but not deposited it in the Government Treasury. Despite this, the judge found that the appellant had a prima facie case for the waiver of pre-deposit. The judge emphasized that the appellant's eligibility for Cenvat credit should not be affected by the service provider's failure to deposit the service tax in the Government Treasury. Therefore, the judge allowed the application for waiver of pre-deposit and stayed the recovery until the appeal is disposed of.

In this case, the judge highlighted that the appellant had availed Cenvat credit based on invoices indicating service tax, even though the service provider had not deposited the collected service tax in the Government Treasury. The judge reasoned that the appellant's entitlement to Cenvat credit should not be hindered by the service provider's actions. Consequently, the judge found that the appellant had established a prima facie case for the waiver of pre-deposit. As a result, the judge allowed the application for waiver and stayed the recovery of the amounts involved until the appeal is finally disposed of.