2010 (7) TMI 262 - AT - Service Tax

Cenvat Credit irregular availment - It is not disputed that the appellants have paid the Service Tax on its activity under Management Consultant . The authorities seek to deny credit of Service Tax taken by the appellants on the ground that the activity was not excisable to Service Tax, the same being specifically excluded under sub-section 108 of the Section 65 of the Finance Act, 1994 Held that - As the respondents had paid the Service Tax and taken credit on the basis of valid documents, its eligibility to such credit cannot be questioned on the basis that the assessment of the service by the Department at the end of the service provider was incorrect pre deposited waived

Summary

Issues:
Waiver of pre-deposit and stay of recovery of demand of CENVAT credit.

Analysis:
The case involved an application by M/s. Manikgarh Cement seeking waiver of pre-deposit and stay of recovery of demand of CENVAT credit amounting to Rs. 42,522 along with interest and a penalty of Rs. 25,000 imposed on them. The dispute pertained to the period of April 2008 to September 2008 and revolved around the credit of Service Tax paid on services rendered as 'Management Consultant'. The original authority and the Commissioner (Appeals) upheld the demand against the applicants. The dispute was deemed to be of a recurring nature, leading to the admission of the appeal.

The learned Counsel for the party argued that the appellants, engaged in cement manufacturing, had paid Service Tax under the category of "Management Consultant" during the relevant period. They contended that once the Service Tax was paid for an activity related to their manufacturing process, the department could not deny credit for the tax paid on such input services. The department, however, reclassified the activity, leading to the denial of the credit. The Counsel relied on precedents like the case of CCE, Chennai v. Carborandum Universal Ltd. and Koch-Glitsch India Ltd. to support their argument.

On the other hand, the JDR representing the department argued that the impugned activity involved various measurements and inspections that were excluded from the levy of Service Tax under the category of "technical inspection and certification" as defined in the Finance Act, 1994. They contended that since the activity did not fall under the specified criteria, Service Tax was not applicable, and hence, the appellants were not entitled to credit for the tax paid on such activities.

After considering the arguments from both sides and examining the case records, it was noted that the appellants had indeed paid the Service Tax under the category of "Management Consultant". The authorities sought to deny the credit based on the exclusion criteria under the Finance Act, 1994. However, citing the decisions in the cases of Carborandum Universal Ltd. and Koch-Glitsch India Ltd., the Tribunal held that once the tax was paid and credit taken based on valid documents, the eligibility for such credit could not be questioned solely on the basis of the department's assessment of the service provider's actions.

Ultimately, the Tribunal found merit in the appellants' arguments, recognizing their strong prima facie case against the demand and penalty imposed. Consequently, a complete waiver of pre-deposit and stay of recovery of the dues adjudged against the appellants was ordered pending the final decision on the appeal.