2009 (11) TMI 424 - AT - Service Tax

Penalty- Mitigating factor- Proceedings were initiated against the respondents on the ground that availment of Cenvat credit of Rs. 46,2.98/- and utilization of the same by them being the service tax paid on GTA services utilized for outward transportation, was not admissible. Impugned order upholding non imposition of penalty as confusion in department and in trade circle on issue involved. Matter clarified by CBE&C Cenvat credit of service tax paid on outward transportation held as admissible by Tribunal s in the case of ABB Limited, reported in 2009 (15) S.T.R. 23. Held that- divergent views existing and allegation for misdeclaration or suppression not sustainable. Impugned order sustainable.

Summary

Issues:
1. Admissibility of Cenvat credit on service tax paid on GTA services for outward transportation.
2. Imposition of penalty under Section 11AC for suppression of facts/mis-declaration.

Analysis:
1. The proceedings were initiated against the respondents regarding the availment of Cenvat credit and utilization of Rs. 46,2.98/- being the service tax paid on GTA services for outward transportation. The Original Adjudicating Authority confirmed the demand and interest but refrained from imposing a penalty, citing a divergent construction of provisions of law between the assessee and the department. On appeal, the Commissioner (Appeals) upheld the decision, noting confusion in the department and trade circles regarding the availability of Cenvat credit for service tax on outward transportation. The Board's Circular clarified the position post the period in dispute. The Revenue argued for penalty under Section 11AC due to the extended period under Section 11A of the Central Excise Act, 1944.

2. The Tribunal considered the submissions and the absence of representation from the respondents. It acknowledged the confusion prevailing in the department and trade circles, which was later clarified by the Board's Circular. Referring to a previous decision in the case of ABB Limited, the Tribunal noted that Cenvat credit on service tax for outward transportation is available without conditions. The existence of divergent views, as evidenced by the Circular and the decision in ABB Limited, negated the allegations of mis-declaration or suppression of facts. Consequently, the Tribunal found that the lower authorities had correctly interpreted the law, leading to the rejection of the Revenue's appeal for being devoid of merits.

This judgment clarifies the admissibility of Cenvat credit on service tax paid on GTA services for outward transportation and addresses the imposition of penalties under Section 11AC for suppression of facts or mis-declaration, emphasizing the importance of legal interpretations and clarifications in resolving disputes.