2009 (12) TMI 407 - AT - Service Tax

Stay- Cenvat Credit- The allegation of the revenue in the show cause notice is that the applicant is not maintaining separate records for the input services commonly used in the taxable services as well as in the sale of gas turbines and hence they are required to utilize only 20% of the service tax payable from the cenvat credit and having not done so, and having utilized cenvat credit in excess of 20% violated/contravened the provisions of Rule 6(3)(c) of the Cenvat Credit Rules 2004. Question whether sale of parts covered under services or category of sale. Held that- trading in sale of parts undertaken. Cenvat Credit amount utilized during impugned period, reserved. Pre-deposit of balance amount waived.

Summary

Issues:
1. Whether the applicant violated Rule 6(3)(c) of the Cenvat Credit Rules 2004 by utilizing cenvat credit in excess of 20% for common inputs used in taxable services and sale of parts relating to gas turbines.
2. Whether the sale of parts relating to gas turbines falls under the category of services or sales, impacting the utilization of cenvat credit.

Analysis:

Issue 1: The main issue in this case is whether the applicant contravened Rule 6(3)(c) of the Cenvat Credit Rules 2004 by utilizing cenvat credit in excess of 20% for common inputs used in taxable services and sale of parts relating to gas turbines. The revenue alleged that the applicant did not maintain separate records for input services, leading to the violation. The adjudicating authority confirmed the demands based on this allegation. However, the applicant argued that they had already reversed the cenvat credit on common inputs attributable to the sale of gas turbine parts, citing relevant case laws to support their position. The Tribunal noted the reversal of cenvat credit and considered it sufficient for the appeal's disposal. The application for waiver of the pre-deposit of the balance amounts was allowed, and recovery stayed until the appeal's disposal.

Issue 2: The second issue revolves around whether the sale of parts relating to gas turbines should be categorized as services or sales. The Tribunal considered this distinction crucial as it would impact the utilization of cenvat credit. If the activity falls under sales, the limitation on utilizing only 20% of the service tax payable from the cenvat credit would not apply. However, if it is classified as services, the limitation would be relevant. After analyzing the relevant provisions of the Cenvat Credit Rules 2004, the Tribunal concluded that the applicant's trading in the sale of gas turbine parts did not fall under exempted services and that the reversal of cenvat credit on common inputs was sufficient for the matter's consideration. Therefore, the Tribunal allowed the waiver of pre-deposit for the balance amounts involved, staying recovery until the appeal's disposal.

In conclusion, the Tribunal's decision was based on the applicant's reversal of cenvat credit on common inputs and the classification of the sale of gas turbine parts. The judgment allowed the waiver of pre-deposit for the balance amounts and stayed recovery pending the appeal's final disposal, emphasizing the importance of correctly categorizing the nature of the activity for tax purposes.