2009 (4) TMI 338 - AT - Service Tax

Cenvat Credit- Notification No. 32/4-ST, dated 3.12.2004 and 12/2003 dated 20.06.2003- The demand has been confirmed on the ground that the appellants did not satisfy the authorities that transporters did not avail CENVAT credit as well as benefit of Notification No. 12/2003 so as to extend the benefit of Notification No. 32/4-ST, dated 3-12-2004 (of 75 per cent abatement) to them. The declaration from the transporters has been rejected by the authorities as the declaration uniformly contained a rubber stamp without any signature of the concerned transporters and was, therefore, not acceptable. Held that- the case is remitted to the adjudicating authority for fresh decision in the light of the certificates now placed before the Tribunal.

Summary

Issues:
1. Waiver of pre-deposit of service tax.
2. Eligibility for benefit under Notification No. 32/4-ST.
3. Rejection of declaration from transporters.
4. Requirement of fresh decision by the adjudicating authority.

Analysis:

1. The judgment addresses the issue of waiver of pre-deposit of service tax amounting to Rs. 2,80,212 for the period from 1-1-2005 to 31-8-2006, along with associated interest and penalties under various sections of the Finance Act, 1994. The tribunal decides to proceed with the appeal itself after waiving the pre-deposit requirement.

2. The demand was confirmed due to the appellants' failure to demonstrate that transporters did not avail CENVAT credit or the benefits of Notification No. 12/2003 to qualify for the benefit under Notification No. 32/4-ST. The rejection of the initial declaration from transporters was based on the absence of signatures on the uniformly stamped documents. However, the appellants subsequently presented certificates from different transporters confirming non-availment of CENVAT credit or benefits under the said notification. The tribunal finds this new evidence crucial for determining eligibility, remitting the case back to the adjudicating authority for a fresh decision.

3. The tribunal acknowledges the importance of the certificates provided by the transporters, emphasizing that this material was not previously submitted to the adjudicating authority or the Commissioner (Appeals). The tribunal directs the adjudicating authority to reconsider the case in light of the new evidence and provide the appellants with a fair opportunity to present their defense before issuing fresh orders.

4. Consequently, the appeal is partly allowed, with the confirmation of a balance demand of Rs. 19,506, while the remaining amount subject to the eligibility for the benefit under Notification No. 32/4-ST is referred back to the adjudicating authority for a thorough review and decision based on the newly presented certificates.