2014 (3) TMI 555 - AT - Central Excise

Benefit of Cenvat credit of service tax - GTA services used for outward transportation of their final product - Appellant s sales were at the factory gate inasmuch as the invoices issued by them bears an endorsement that the appellant s responsibility ceases after delivery for any damage of goods at the factory gate - Held that - some of the invoices bear the endorsement to the effect that our responsibility cease after to carry for any damage/shortage. If that be so, we are prima facie of the view that the sales are not FOR sales - However, in view of the endorsement on the invoices, it can be concluded at the prima facie stage that the appellants do not have a good case so as to allow stay petition unconditionally. We have also seen the balance sheet of the appellant, which does not reflect a very poor financial condition - Conditional stay granted.

Summary

Issues:
1. Dispensing with the condition of pre-deposit of confirmed duty.
2. Applicability of Cenvat credit on service tax paid on GTA services.
3. Interpretation of sales as FOR sales.
4. Financial condition of the appellant.
5. Direction for depositing duty and waiver of penalty.

Analysis:

1. The judgment addresses the issue of dispensing with the condition of pre-deposit of confirmed duty amounting to Rs.2,57,84,712/- for the period January 2006 to December 2009. The duty was confirmed due to the denial of Cenvat credit on service tax paid on GTA services used for outward transportation of the final product, i.e., cement.

2. The Tribunal considered the applicability of Cenvat credit based on the nature of sales. While referring to a Larger Bench decision and the High Court ruling in the case of ABB Ltd., the Tribunal differentiated between FOR sales and other types of sales. The presence of an endorsement on the invoices indicating the appellant's responsibility ceases after a certain point influenced the decision regarding the nature of sales.

3. The interpretation of sales as FOR basis was a crucial aspect of the judgment. The appellant's advocate highlighted the contractual agreements with customers specifying FOR basis sales. However, the Tribunal noted the discrepancy between the endorsements on the invoices and the contractual terms, leading to a prima facie view that the sales might not qualify as FOR sales.

4. The financial condition of the appellant played a significant role in the decision-making process. Despite the contention and arguability of the issue, the Tribunal considered factors such as the appellant's balance sheet and financial stability. The Tribunal observed an increase in profits and dividend payments, indicating a healthy financial position.

5. Based on the financial assessment and other evidence presented, the Tribunal directed the appellant to deposit a specific amount of duty within a specified period. The judgment outlined the conditions for the waiver of the balance duty amount and the penalty, with a stay on recovery during the appeal's pendency. The compliance date was set for future monitoring of the appellant's actions.

In conclusion, the judgment comprehensively analyzed various issues related to the pre-deposit of duty, Cenvat credit applicability, sales interpretation, financial condition assessment, and the direction for duty deposit and penalty waiver. The decision was based on a thorough evaluation of legal arguments, financial evidence, and statutory provisions.