2010 (3) TMI 136 - AT - Service Tax

GTA service payment of service tax on GTA service through cenvat credit - whether the appellant was entitled to pay service tax during the period of dispute on GTA service (which was availed for outward transportation of their final products) by making use of Cenvat credit taken on input services. Held that appeal is allowed by way of remand with a request to the learned Commissioner (Appeals) to dispose of the assessee s appeals (filed against the orders-in-original) on merits without insisting on pre-deposit after giving them a reasonable opportunity of being heard.

Summary

Issues:
1. Entitlement to pay service tax on GTA service using Cenvat credit.
2. Recognition of GTA service as an output service.
3. Disposal of appeals without pre-deposit.
4. Referral of the issue to the Larger Bench.

Entitlement to pay service tax on GTA service using Cenvat credit:
The main issue in this case was whether the appellant was entitled to pay service tax on GTA service, used for outward transportation of final products, by utilizing Cenvat credit on input services. The original authority had denied this entitlement, stating that Cenvat credit could not be used for this purpose. The appellant argued that several decisions by the Tribunal supported their position, citing cases like India Cements Ltd. vs. Commissioner of Central Excise and Mahindra Ugine Steel Co. Ltd. vs. CCE. The Tribunal considered these precedents and the fact that the issue was referred to the Larger Bench, and concluded that the appellant did not need to make any pre-deposit.

Recognition of GTA service as an output service:
The dispute also revolved around whether the GTA service for outward transportation of final products should be recognized as an output service for the purpose of Cenvat Credit Rules. The appellant contended that previous Tribunal decisions supported their view, emphasizing that the issue was referred to the Larger Bench. Considering the favorable decisions and the referral, the Tribunal set aside the impugned orders and remanded the appeals to the Commissioner (Appeals) for a merit-based decision without insisting on pre-deposit.

Disposal of appeals without pre-deposit:
The appeals filed by the assessee were dismissed by the appellate authority due to non-compliance with the directive to pre-deposit the duty amount under Section 35F of the Central Excise Act. The Tribunal, after examining the records and arguments from both sides, decided to dispose of the appeals without requiring any pre-deposit, given the existing Tribunal decisions in favor of the assessee and the issue being referred to the Larger Bench.

Referral of the issue to the Larger Bench:
The Tribunal noted that the issue regarding the treatment of GTA service for service tax payment was referred to the Larger Bench, indicating the complexity and significance of the matter. Considering this referral and the supporting Tribunal decisions, the Tribunal decided that the appellant should not be directed to make any pre-deposit and allowed the appeals by remanding the case for a fresh decision by the Commissioner (Appeals) without the need for pre-deposit.