2010 (12) TMI 369 - AT - Service Tax

Waiver of pre-deposit - Service recipient - The appellant is a manufacturer of home furnishing products chargeable to Central Excise Duty - The appellant received GTA service for transportation of the inputs to their factory and transportation of their finished products to their customers and paid service tax in respect of the same - However, for payment of service tax they availed the exemption under Notification No. 32/04-ST dated 3-12-2004 and successor Notification No. 1/06-ST dated 1-3-2006. When the exemption under Notification No. 32/04-ST and its successor Notification No. 1/06-ST is subject to condition that the Cenvat credit on the inputs or capital goods used for providing the GTA service has not been availed by the GTA or benefit of exemption Notification No. 12/03-ST dated 20-6-2003 has not been availed by the GTA and the Notification does not prescribe any format in which the certificate to this effect is to be provided,the certificates given by the GTAs on their letter heads in this regard are sufficient and the Department cannot insist that such certificates should on each consignment note - Decided in favour of assessee.

Summary

Issues:
- Eligibility for exemption under Notification No. 32/04-ST and successor Notification No. 1/06-ST for payment of service tax on transportation services received by the appellant.
- Requirement of declarations from Goods Transport Agencies (GTAs) regarding non-availment of Cenvat credit and benefit of exemption under Notification No. 12/03-ST dated 20-6-2003.

Analysis:
- The appellant, a manufacturer of home furnishing products, availed GTA services for transportation of inputs and finished products, paying service tax under Rule 2(1)(d)(v) of the Service Tax Rules, 1994, and claimed exemption under Notification No. 32/04-ST and Notification No. 1/06-ST. However, the Department issued a show cause notice alleging non-fulfillment of conditions for exemption, leading to a demand for service tax, interest, and penalty. The Assistant Commissioner and Commissioner (Appeals) upheld the demand, rejecting declarations provided by the appellant regarding non-availment of Cenvat credit and exemption benefits by GTAs (para. 1.1).

- The appellant contended that certificates from GTAs on their letterheads confirming non-availment of Cenvat credit and exemption benefits, produced as evidence, satisfied the conditions of the notifications. They argued that the notifications did not specify the format or requirement for such declarations to be on each consignment note, making the provided declarations valid for claiming exemption. The Departmental Representative supported the lower authorities' decision (para. 2, 2.1, 2.2).

- The Tribunal observed that the appellant had indeed submitted certificates from GTAs regarding non-availment of Cenvat credit and exemption benefits, as required by the notifications. Since the notifications did not mandate a specific format for such certificates and considering the lack of a requirement for declarations on each consignment note, the Tribunal held that the certificates provided by GTAs on their letterheads were sufficient. Consequently, the impugned order was set aside, the appeal allowed, and the stay application disposed of in favor of the appellant (para. 4).