2008 (2) TMI 273 - AT - Service Tax

Denial of credit on basis of invalid documents - appellants contention that the re-imbursement charges were never paid and the fact of non-payment is certified by the Chartered Accountant, is correct - Since document contains all the details, therefore, irregular maintenance of the documents cannot be a ground to deny credit of service tax - taking into consideration of the accumulated loss incurred by the appellants, stay is granted partly

Summary

Issues:
- Pre-deposit requirement for service tax and penalty
- Disallowance of Cenvat credit on improper documents
- Disallowance of credit for insurance charges and hotel bills
- Alleged ineligible credit availed and reversal
- Charges for consultancy services from foreign consultants
- Reimbursement of expenses and royalty payments
- Terminal charges retained from auctioned goods
- Charges collected for pre-staging operations
- Amounts received from CONCOR for storage

Pre-deposit Requirement for Service Tax and Penalty:
The appellant was directed to pre-deposit a substantial amount towards service tax and penalty for the purpose of hearing the appeal. The pre-deposit was set at Rs. 1,07,56,684, and failure to comply would result in the dismissal of the appeal. However, considering the financial hardship faced by the appellant, they were able to pre-deposit a sum of Rs. 20 lakhs, and further directions were given for the remaining pre-deposit amount.

Disallowance of Cenvat Credit on Improper Documents:
The demand of Rs. 35,39,026 for disallowance of Cenvat credit on improper documents was contested by the appellant. The appellant argued that although the documents did not precisely match the rules, they contained all necessary details for verification of payment by the service provider and receipt of service by the appellant. The appellant emphasized that technical discrepancies should not be a ground for denying the credit.

Disallowance of Credit for Insurance Charges and Hotel Bills:
A demand of Rs. 3,04,450 along with educational cess was raised for disallowance of credit taken in respect of insurance charges and hotel bills. The appellant defended this by stating that the insurance charge was related to statutory coverage for employees, and the hotel expenses were incurred for providing food to business guests, which should not be subjected to service tax.

Alleged Ineligible Credit Availed and Reversal:
Regarding the demand of Rs. 3,93,893 for reversal of alleged ineligible credit availed, the appellant argued that part of the demand related to spares where the 50% credit restriction did not apply, and the remaining part pertained to the balance 50% credit on capital goods which the appellant was entitled to take by the time the SGN was issued.

Charges for Consultancy Services from Foreign Consultants:
An amount of Rs. 20,72,665 was demanded for charges allegedly paid for consultancy services procured from foreign consultants. The appellant contended that the services received were not in the nature of consultancy services, indicating a strong case on merits.

Reimbursement of Expenses and Royalty Payments:
The demand of Rs. 27,61,934 for reimbursement of expenses and royalty payments was disputed by the appellant, stating that the amount was never paid, as certified by a Chartered Accountant. The appellant argued that non-payment absolved them from the liability to pay.

Terminal Charges Retained from Auctioned Goods:
A demand of Rs. 5,97,488 for terminal charges retained by the appellant from auctioned goods was challenged on the grounds that conducting an auction for uncleared cargo did not constitute a service to the importer, and thus, the auction proceeds should not be subject to service tax.

Charges Collected for Pre-Staging Operations:
The demand of Rs. 5,86,185 for charges collected at a pre-stage yard for pre-staging operations was defended by the appellant, claiming that the charges were fees for providing infrastructure for customs examination and were not related to actual provision of port services for vessels or goods.

Amounts Received from CONCOR for Storage:
Regarding the demand of Rs. 3,72,185 received from CONCOR for storage of cashew containers, the appellant argued that the amount represented a portion of the total amount received by CONCOR from clients, and CONCOR had already paid tax on the full amount, absolving the appellant from double taxation.

In conclusion, the tribunal considered the arguments presented by both sides and directed the appellant to make a specific pre-deposit within a stipulated time frame, taking into account the financial difficulties faced by the appellant. The matter was listed for a final hearing subject to compliance with the pre-deposit order.