2010 (3) TMI 483 - AT - Service Tax

Stay Cenvat Credit - CENVAT credit availed on Service Tax paid in respect of outward transportation of the finished goods has been demanded from the appellant and penalty equal to the duty amount has also been imposed. Submission that goods supplied on FOR basis and place of removal to be buyer premises. Purchase order providing that transit insurance be provided by owner. Held that- invoking extended period on the ground of suppression or mis-declaration with intent to evade payment of duty may not be justifiable. Therefore, I consider that the appellant has made a strong prima facie case in their favour.

Summary

Issues:
Demand of CENVAT credit on Service Tax for outward transportation of finished goods, imposition of penalty, interpretation of place of removal, invocation of extended period for demand, relevance of decision by Larger Bench of Tribunal, prima facie case analysis.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Ahmedabad dealt with the demand of Rs.3,01,188/- as CENVAT credit on Service Tax for outward transportation of finished goods, along with the imposition of a penalty equal to the duty amount. The period under scrutiny was 2004-2007, with a show cause notice issued on 8.8.08. The appellant argued that the goods were supplied on FOR destination basis, making the buyer's premise the place of removal, justifying the credit availed. Reference was made to a decision by the Larger Bench of the Tribunal in the case of M/s ABB Ltd., indicating the possibility of two views on the issue, thus questioning the invocation of the extended period for demand.

The Respondent, on the other hand, contended that the purchase order and invoice stipulated transit insurance to be arranged by the owner, implying the factory gate as the place of removal despite the transportation cost being borne by the appellant. The Tribunal noted that prima facie, the department had a case on merit due to the ownership of transit insurance. However, considering the conflicting views highlighted by the appellant regarding the Larger Bench decision and the circular issued by the department, the Tribunal found a strong prima facie case in favor of the appellant.

Consequently, the Tribunal waived the pre-deposit of the duty and penalty demanded under Section 35F of the Central Excise Act, 1944, and granted a stay against the recovery of duty and penalty during the appeal's pendency. The judgment emphasized the importance of considering conflicting views and prima facie cases in determining the validity of demands and penalties in taxation matters.