2010 (8) TMI 444 - AT - Service Tax

CENVAT Credit - The provisions of law relating to service tax, nowhere it is mentioned that the CENVAT credit is not available prior to registration - In fact CENVAT Credit Rules clarifies that the assessee is available for CENVAT credit which is applicable to them within the provisions of CENVAT Credit Rules, 2004 or Service Tax Credit Rules, 2002 - Accordingly, CENVAT credit is available to the appellant with effect from 10-9-2004 when the CENVAT Credit Rules, 2004 came into force but the Service Tax Credit Rules, 2002 were also in force prior to 10-9-2004 and the appellant is entitled for entire service tax credit availed by them. Accordingly, the issue No. 1 is settled in favour of the appellants. Waiver of penalty u/s 80 - The statement of the appellants which was recorded on 11-4-2007 and as per the statement, nowhere it is coming out that the appellants were having any knowledge of their service tax liability, prior to the search by the Revenue department - Accordingly, the service tax liability being a new one and there were confusions regarding the applicability of the service tax liability under the Business Auxiliary Services, the appellants are entitled for benefit of section 80 of the Finance Act, 1994 for waiver of penalty -Hence, the impugned order is set aside and the appeal is allowed.

Summary

Issues: Appeal against demand of service tax, denial of CENVAT credit, and penalties under sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:

Issue 1: Entitlement to CENVAT credit prior to registration
The appellant appealed against the denial of CENVAT credit of Rs. 34,113 by the lower authorities. The appellant argued that they were not aware of their service tax liability and had paid the tax promptly upon notification by the department. The appellant contended that there was no provision disallowing CENVAT credit prior to registration under the CENVAT Credit Rules, 2004 or Service Tax Credit Rules, 2002. The Department acknowledged that the CENVAT Credit Rules, 2004 came into effect from 10-9-2004 but argued that credit taken before this date was not available. However, the Tribunal found that the Service Tax Credit Rules, 2002 were in force before 10-9-2004, entitling the appellant to the entire service tax credit availed by them. The Tribunal ruled in favor of the appellant on this issue.

Issue 2: Levying of penalties under various sections of the Finance Act, 1994
The second issue revolved around whether penalties under sections 76, 77, and 78 of the Finance Act, 1994 were applicable to the appellant. The Tribunal examined the appellant's statement, which indicated a lack of knowledge regarding their service tax liability before the search conducted by the Revenue department. Considering the confusion surrounding the applicability of the service tax liability under Business Auxiliary Services, the Tribunal concluded that the appellant was entitled to the benefit of section 80 of the Finance Act, 1994 for a waiver of penalties. The Tribunal found that the appellant had a reasonable cause for not paying the service tax before the search and, therefore, waived the penalties imposed on the appellant. Consequently, the impugned order was set aside, and the appeal was allowed.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the appeal against the demand of service tax, denial of CENVAT credit, and penalties under sections 76, 77, and 78 of the Finance Act, 1994. The appellant was granted the CENVAT credit availed by them prior to registration and was exempted from penalties under section 80 of the Finance Act, 1994 due to a lack of prior knowledge of their service tax liability.