2007 (3) TMI 116 - AT - Service Tax

Stay/Dispensation of pre-deposit - Alleged that applicant has availed and utilized inadmissible cenvat credit on common input services which were used in or in relation to the manufacture of both dutiable and exempted final products and also in relation to traded goods - Held that allegation is correct and demand and penalty sustained

Summary

Issues:
Stay application against demand of inadmissible credit of duty and penalty.

Analysis:
The case involved a stay application against the demand of inadmissible credit of duty amounting to Rs. 3,75,31,618/- and imposition of an equivalent amount of penalty on a company. The company was alleged to have availed and utilized inadmissible Cenvat credit on common input services used in the manufacture of both dutiable and exempted final products, as well as in relation to traded goods. The company had units in different locations manufacturing various products, some of which were exempt from duty. The dispute arose from the department's contention that the company failed to maintain separate accounts for services used in the manufacture of dutiable, exempted, and traded goods, as required by Rule 6(3) of the Cenvat Credit Rules, 2004. As a result, a show cause notice was issued proposing to deny the entire credit availed on common input services, leading to the imposition of a penalty.

The applicant argued that the definition of input service under Rule 2(1) of the Cenvat Credit Rules, 2004 covered the common input services in question, regardless of whether they were used directly in the manufacture of final products. The company contended that Rule 6(1) only sought to deny credit on input services used in the manufacture of exempted goods, not those used in relation to such manufacture. The company highlighted that certain services like advertisement, market research, and event management were not directly related to the manufacture of final products but were essential for promoting sales and business operations. The Tribunal, however, did not agree with the argument that input services under Rule 2(1) need not be used in or in relation to the manufacture of final products. The Tribunal also found the interpretation of Rule 6(2) debarring credit only in respect of input services used in the manufacture of final exempted products to be contentious and not prima facie tenable.

After considering the submissions, the Tribunal found no prima facie case for a complete waiver of pre-deposit. However, it noted that a portion of the demand related to advertising expenses for products that were neither exempted nor manufactured by a specific unit until a certain date, which raised doubts about the sustainability of that part of the demand. The Tribunal directed the applicant to deposit a specified amount towards duty within a set timeframe, with a waiver from the pre-deposit of the remaining duty and penalty, subject to compliance. Failure to comply would result in vacation of the stay and dismissal of the appeal without further notice.