2010 (5) TMI 350 - AT - Service Tax

Waiver of pre-deposit - Cenvat credit on the service tax paid on the input services - appellant herein has sent Piston Rings in coil form under material movement challans - appellant and had charged the amount towards the job work charges and has paid service tax on the said job work charges - availed Cenvat credit of such service tax paid - Revenue is seeking to recover the same on the ground that M/s. FMGIL is not liable to pay any service tax - should have availed the benefit of Notification No. 8/05-S.T., dated 1-3-2005 - Held that - said notification can be construed as a conditional one and on perusal of Section 93 of the Finance Act, 1994, - said section does not envisage any compulsory availment of the benefit of Notification issued under the said section - Application for waiver of pre-deposit of the amount involved is allowed

Summary

Issues:

1. Availment of Cenvat credit on service tax paid for job work basis.
2. Applicability of Notification No. 8/05-S.T., dated 1-3-2005.
3. Liability of M/s. FMGIL to pay service tax.
4. Benefit of Cenvat credit for the appellant.

Analysis:

1. The case involved the appellant availing Cenvat credit on service tax paid for job work basis between April 2007 to June 2008. The appellant sent 'Piston Rings in coil form' to M/s. FMGIL for chrome plating on job work basis. FMGIL returned the material after chrome plating, charged job work fees, and paid service tax on it. The Revenue sought recovery, arguing that FMGIL was not liable to pay service tax under Notification No. 8/05-S.T., dated 1-3-2005.

2. The appellant's counsel argued that the benefit of Cenvat credit on service tax paid by FMGIL should not be denied as the notification was conditional. They contended that FMGIL's non-availment of the notification's benefit did not violate the law, and the appellant rightfully claimed the credit. The appellant's counsel highlighted that the Finance Act did not mandate availing benefits under service tax notifications.

3. The Revenue pointed out statements from FMGIL executives indicating that service tax payment aimed to utilize available Cenvat credit. They argued that FMGIL had received a show cause notice questioning the service tax payment's validity for activities they undertook. However, the Tribunal noted that FMGIL had discharged the service tax liability, issued invoices, and the appellant had paid the amount to FMGIL.

4. After considering both parties' submissions and reviewing the records, the Tribunal found that FMGIL had fulfilled its service tax liability, and the appellant had a prima facie case for waiver of pre-deposit. The Tribunal interpreted the notification as conditional and noted that the Finance Act did not mandate availing benefits under such notifications. Consequently, the Tribunal allowed the application for waiver of pre-deposit, staying recovery until the appeal's disposal.

This detailed analysis of the judgment covers the issues of Cenvat credit availed, applicability of the notification, service tax liability of FMGIL, and the benefit of Cenvat credit for the appellant, providing a comprehensive understanding of the legal reasoning and decision-making process involved in the case.