2010 (1) TMI 490 - AT - Service Tax

Cenvat Credit - Input Services - applicants are providing taxable service falling under the category of Transport of Goods through pipeline or other conduit service , which is a State Government Undertaking. A scrutiny of the documents was conducted and it was found that the applicants are availing input credit of service tax on commercial or industrial construction service/erection, installation and commissioning service used for execution of pipeline project, in contravention of provisions of Cenvat Credit Rules, 2004. Further, the applicants are also availing Cenvat Credit of input services like engineering consultancy, vehicle hiring services, insurance expenses, inspection charges, legal and profession fees, ROU/ROW expenses, site office expenses, security services etc. used in execution of pipeline system erected, commissioned, installed and constructed by the EPC contractors, in contravention of provisions of Cenvat Credit Rules, 2004. Accordingly, the Cenvat Credit availed was denied with interest and penalties under sections 76 and 78 were also imposed. Held that - cenvat credit availed by the assessee was covered under the definition of section 2(l) and moreover the provisions of Rule 6(1) were not applicable to the case of the assessee as the assessee had dealt in transportation of natural gas and it was not selling the pipelines. Therefore, there was no force in the contention of the revenue. Accordingly, the condition of pre-deposit of service tax, interest and penalty during the pendency of the appeal was to be dispensed with.

Summary

Issues:
1. Imposition of service tax, interest, and penalty on the applicant for disallowing input credit of service tax.
2. Availing input credit of service tax on various services used in the execution of pipeline projects.
3. Interpretation of the definition of input service under Cenvat Credit Rules, 2004.
4. Applicability of rule 6(1) of Cenvat Credit Rules, 2004.
5. Invocation of the extended period for demand.
6. Requirement of pre-deposit before hearing the appeal.

Analysis:
1. The judgment deals with a stay application against the imposition of service tax, interest, and penalty on the applicant for disallowing input credit of service tax. The applicant, a State Government undertaking providing transportation of goods through pipelines, was denied Cenvat Credit on various services used in pipeline projects. The Tribunal considered the submissions and granted a waiver of pre-deposit of the demanded amount during the appeal, finding that the services availed were in relation to the applicant's business activity of transporting natural gas through pipelines.

2. The Tribunal examined the availing of input credit of service tax on services like engineering consultancy, vehicle hiring, insurance expenses, and others used in pipeline projects. The Tribunal found that the services availed were related to the applicant's business activity of transporting natural gas through pipelines. It concluded that the Cenvat Credit availed fell under the definition of input service under Cenvat Credit Rules, 2004, and ruled in favor of the applicant.

3. The interpretation of the definition of input service under Cenvat Credit Rules, 2004 was crucial in this case. The applicant argued that the services for which they availed credit were used in relation to their business activities for providing outward service of transporting natural gas through pipelines. The Tribunal agreed with this interpretation, stating that the services were indeed related to the applicant's business activity and thus qualified as input services under the rules.

4. The applicability of rule 6(1) of Cenvat Credit Rules, 2004 was a point of contention. The Commissioner had held that the pipeline was not the premises of the applicant and that they were not the landowners where the pipeline was laid. However, the applicant argued that the pipelines were their properties through which they conducted transportation of goods. The Tribunal sided with the applicant, stating that rule 6(1) was not applicable as the applicant was engaged in the transportation of natural gas, not selling the pipelines.

5. The issue of invoking the extended period for demand was raised. The applicant contended that they were registered with the department since 2005, paid service tax, and regularly filed returns, making the extended period inapplicable. The Tribunal considered this argument and granted a waiver of pre-deposit, indicating that the extended period was not invokable in this case due to the applicant's compliance with registration and tax payment requirements.

6. Lastly, the question of requiring a pre-deposit before hearing the appeal was addressed. The SDR argued that the applicant should make a pre-deposit of the entire demand before the appeal hearing. However, the Tribunal disagreed, finding that the services availed were related to the applicant's business activity, and therefore, waived the pre-deposit requirement for service tax, interest, and penalties during the appeal process.