2017 (11) TMI 347 - AT - Service Tax

CENVAT credit - GTA services - whether appellant is eligible to avail credit on GTA services for the period October, 2005 to March, 2006? - sub-section (4) of Section 84 - Held that - The provision of sub-section (4) of Section 84 expressly states that no order shall be passed by the Commissioner when an appeal is pending before the Commissioner (Appeals). Therefore, the order passed by the Commissioner confirming the penalty under Section 76 as well as confirming the demand of interest is against law - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Irregular availment of Cenvat credit on GTA services.
2. Imposition of penalty under Rule 15(3) of Cenvat Credit Rules, 2004.
3. Proposal for penalty under Section 76 of Finance Act, 1994.
4. Revisional powers under Section 84 of the Finance Act.
5. Eligibility to avail credit on GTA services.
6. Appeal pending before the Commissioner (Appeals).
7. Confirmation of penalty and interest by the Revisional Authority.

Analysis:
The appeal in this case was filed against the order passed by the Commissioner (Appeals) under Section 84 of the Finance Act, 1994, as the Revisional Authority. The appellants were accused of irregularly availing Cenvat credit on GTA services for a specific period. The original authority confirmed a demand amount, did not confirm the demand for interest, and imposed a penalty under Rule 15(3) of Cenvat Credit Rules, 2004, without invoking penalty under Section 76 of the Finance Act, 1994. Subsequently, the Commissioner, utilizing Revisional powers, issued a show cause notice proposing a penalty under Section 76. The Commissioner then confirmed the penalty and interest demand through an order dated 4-12-2008. The appellants challenged this order before the Tribunal.

Regarding the eligibility to avail credit on GTA services, the appellant's counsel argued that the issue had been settled in favor of the assessee by various judgments of High Court and Tribunal. It was highlighted that a previous Tribunal order had ruled in favor of the appellant for a different period. The appellant had also filed an appeal against the confirmation of demand for the period in question, which was still pending before the Commissioner (Appeals). The counsel contended that as per the relevant provision of Section 84, no order could be passed by the Commissioner while an appeal was pending before the Commissioner (Appeals), rendering the impugned order against the law.

In response, the Advocate representing the Respondent reiterated the findings in the impugned order, stating that the original authority had not imposed a penalty under Section 76 or confirmed interest on the demand as proposed in the show cause notice. The Respondent argued that the order passed by the Revisional Authority was appropriate.

After hearing the submissions, the Member (J) noted that the provision of Section 84 explicitly prohibited the Commissioner from passing any order on an issue pending before the Commissioner (Appeals). Therefore, the order confirming the penalty under Section 76 and the demand for interest was deemed unlawful. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential reliefs.