2012 (11) TMI 73 - AT - Central Excise

Waiver of pre-deposit - Applicants availed credit at their Borivali plant in respect of the service tax paid regarding taxable services received at various depots Held that - Tribunal as a judicial body must follow principles of consistency when it decides the cases - Tribunal in applicants own case set aside the demand which was confirmed on the same grounds in appeal - applicants have made out a strong prima facie for waiver of pre-deposit of the duty, interest and penalty

Summary

Issues:
- Availment of Cenvat Credit on input services distributed to various units
- Admissibility of Cenvat Credit on Goods Transport Agency services
- Requirement of pre-deposit in the case

Issue 1: Availment of Cenvat Credit on input services distributed to various units:
The case involved M/s. Tata Steel Ltd. availing Cenvat Credit on input services distributed to different units. The dispute arose from show-cause notices alleging that credit was taken based on invoices from depots as input service distributors for services like loading/unloading, handling charges, etc., received at locations other than the Borivali plant. The jurisdictional Assistant Commissioner held that the appellant was not entitled to the credit, which was confirmed by the Commissioner (Appeals). The appellant argued that there was no bar in distributing credit to various units, citing a Tribunal judgment. The Tribunal analyzed the definitions of 'input service' and 'output service' under the Cenvat Credit Rules, 2004. It concluded that availing credit for services beyond the place of removal for transportation to customers did not fall within the scope of input service. The Tribunal found that credit could only be availed for inputs and services used directly or indirectly in the manufacture of final products at a registered factory or in rendering output services from a registered premises. The appellant was directed to make a pre-deposit of 50% of the demanded Cenvat Credit.

Issue 2: Admissibility of Cenvat Credit on Goods Transport Agency services:
Regarding the admissibility of Cenvat Credit on Goods Transport Agency (GTA) services, the Tribunal observed that during the impugned period, services of GTA were excluded from the definition of output service and input service under the Cenvat Credit Rules, 2004. The Tribunal clarified that availing credit for transportation beyond the place of removal to the customer's premises was not permissible. The Tribunal emphasized the importance of establishing a nexus between the availment of credit and its utilization in the manufacture of final products or rendering output services. Therefore, the Tribunal held that availing Cenvat Credit on GTA services beyond the place of removal was not within the scope of input service as defined in the rules.

Issue 3: Requirement of pre-deposit in the case:
A difference of opinion arose among the Tribunal Members regarding the requirement of pre-deposit. One Member disagreed with the need for pre-deposit based on the appellant's strong prima facie case and consistency in previous Tribunal orders. The third Member agreed with the view that the appellant had made out a strong prima facie case for waiver of pre-deposit. The majority decision concluded that the appellant had a case for 100% waiver of pre-deposit, leading to the waiver of the impugned demands and staying the recovery during the appeal's pendency.

This detailed analysis covers the issues of Cenvat Credit availment on input services, admissibility of credit on GTA services, and the requirement of pre-deposit in the legal judgment delivered by the Appellate Tribunal CESTAT, Mumbai.