2018 (7) TMI 1282 - AT - Service Tax

CENVAT Credit - whether the other income shown by the appellant was taxable under the category of Business Auxiliary Services or Transportation of Goods Services ? - Held that - In the absence of any evidence to substantiate the stand of the Revenue that the said other income was on account of services proved under the category of Business Auxiliary , the appellant stand of the other income having been arisen on account of the Transportation Activities has to be accepted in which case the appellant would be entitled to Cenvat credit of the same - credit allowed. Extended period of Limitation - Held that - The credit was availed by reflecting the same in the Cenvat credit account, in which case it cannot be said that there was any mala-fide suppression on the part of the appellant - the demand raised by invoking the longer period of limitation is not sustainable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Classification of Service Tax payment under "Business Auxiliary Services" or "Transport of Goods by Road Services"
2. Entitlement to Cenvat credit for Service Tax payment
3. Validity of Show Cause Notice issued beyond the limitation period
4. Interpretation of the Larger Bench decision regarding suo-motu refund

Analysis:

1. Classification of Service Tax payment: The appellants initially paid Service Tax under "Business Auxiliary Services" but later claimed it should have been paid under "Transport of Goods by Road Services" due to the nature of the income. The Tribunal noted that the Revenue failed to provide evidence that the income fell under "Business Auxiliary Services." As the appellant demonstrated the income was related to transportation activities, the Tribunal accepted the appellant's contention, allowing them to avail Cenvat credit.

2. Entitlement to Cenvat credit: The Tribunal found that the appellant correctly availed Cenvat credit for the Service Tax paid, considering it as a Cenvatable input service related to transportation activities. The Tribunal supported the appellant's position due to the lack of evidence from the Revenue to prove otherwise.

3. Validity of Show Cause Notice: The Show Cause Notice issued beyond the limitation period was contested by the appellant. The Tribunal disagreed with the Lower Authorities, stating that the appellant's action of reflecting the credit in their Cenvat account did not indicate any mala-fide suppression. Consequently, the demand raised beyond the limitation period was deemed unsustainable and set aside.

4. Interpretation of Larger Bench decision: The Tribunal refuted the Commissioner (Appeals)'s finding regarding the necessity of permission for suo-motu refund, citing a case precedent. The Tribunal clarified that the present case involved the availment of credit for Service Tax paid on GTA Services, a Cenvatable input service, which did not require the same permissions as a refund. Therefore, the Tribunal allowed the appeal, overturning the impugned order and penalties, providing consequential relief to the appellant.