2010 (1) TMI 344 - AT - Service Tax

Stay- Cenvat Credit- The Applicant has been denied Cenvat credit on the ground that they have not maintained separate accounts for the capital goods/input services used in relation to rendering of taxable services and exempted services. An amount of Rs. 94,57,161/- has been demanded from the applicant alongwith interest and equal amount has been imposed as penalty. Held that- Tribunal in precedent decision held in favour of appellant in their favour. Pre-deposit of balance amounts waived.

Summary

Issues:
1. Denial of Cenvat credit for not maintaining separate accounts.
2. Disputed amount of service tax paid.
3. Interpretation of Rule 6(3)(c) of Cenvat Credit Rules.
4. Applicability of previous tribunal and high court decisions.

Analysis:
1. The appellant was denied Cenvat credit due to not maintaining separate accounts for capital goods/input services used in both taxable and exempted services. A substantial amount was demanded along with interest and penalty. The appellant contended that the disputed service tax had been paid, and no service tax was actually demandable. The advocate argued that the 20% limit under Rule 6(3)(c) should not consider credit on capital goods used for both categories of services, citing a Tribunal decision in the BSNL case.

2. The appellant had paid the disputed service tax, and the advocate argued against the erroneous assumption made in the show cause notice regarding the 20% limit under Rule 6(3)(c). The advocate relied on the BSNL case precedent, emphasizing that the restriction of 20% applies only to credit on input services, not capital goods. The respondent, represented by the SDR, supported the Commissioner's findings and referenced a decision of the Bombay High Court in the Nicholas Piramal case.

3. The Tribunal carefully considered the submissions from both sides, noting that the Nicholas Piramal judgment did not directly relate to Rule 6(3)(c) of the Cenvat Credit Rules. Given the favorable decision in the BSNL case and the payment of disputed service tax by the appellants, the Tribunal found a prima facie case in their favor. Consequently, the Tribunal waived the pre-deposit of the balance of dues as per the impugned order and stayed the recovery until the appeal's disposal.

This judgment highlights the importance of maintaining separate accounts for Cenvat credit eligibility and the interpretation of rules governing credit utilization in relation to taxable and exempted services. The reliance on previous decisions and the payment of disputed taxes played a significant role in the Tribunal's decision to grant relief to the appellants pending the appeal's final resolution.