2013 (7) TMI 593 - AT - Service Tax

Recovery of service tax as per Notification No.35/2004-ST assessee should have discharged the service tax as a recipient - proceedings were initiated for recovering service tax on GTA service received by the assessee - Held that - Extended period could not have been invoked since it cannot be said that there was intention to evade payment of duty when the transporter had paid the service tax and in any case as a recipient assessee was eligible for the benefit of CENVAT Credit also court relied upon decisions of the Tribunal in Navyug Alloys Pvt. Ltd. vs. CCE, Vadodara-II (2008 (8) TMI 100 - CESTAT AHEMDABAD) - Stay application as there was no point in postponing the final issue court granted the stay appeal decided in favour of assessee.

Summary

Issues:
Recovery of service tax on GTA service received by the appellant during a specific period.

Analysis:
The judgment by the Appellate Tribunal CESTAT Bangalore involved the issue of recovering service tax on GTA service received by the appellant between September 2006 to March 2007. The appellants, engaged in the manufacture of High Carbon Ferro-chrome, had paid transportation charges and service tax to the transporter of anthracite coal, a raw material. The dispute arose as per Notification No.35/2004-ST dated 3.12.2004, which required the appellant to discharge the service tax as a recipient. However, the transporter had already paid the service tax, leading to proceedings initiated against the appellant for the recovery of service tax.

The learned counsel for the appellant relied on several Tribunal decisions to support their case. These decisions, including Navyug Alloys Pvt. Ltd. vs. CCE, Vadodara-II, Mandev Tubes vs. CCE, Vapi, Sakthi Masala P. Ltd. vs. CCE, Salem, Deccan Chromates Ltd. vs. CCE, Hyderabad, and CST, Meerut-II vs. Geeta Industries P. Ltd., established that if the transporter had paid the service tax on the same service, the tax cannot be demanded from the recipient again. Additionally, the counsel argued that the extended period should not have been invoked in this case.

After considering the submissions, the Tribunal found that the decisions cited by the counsel were applicable to the case at hand. It was noted that the extended period could not have been invoked as there was no intention to evade payment of duty when the transporter had already paid the service tax. Moreover, as a recipient, the appellant was eligible for the benefit of CENVAT Credit. Given that the issue was squarely covered by the previous decisions and there was no need to delay the final decision, the Tribunal allowed the stay application and the appeal in favor of the appellant.

In conclusion, the judgment highlighted the importance of previous Tribunal decisions in similar cases, the inapplicability of the extended period in certain situations, and the eligibility of the appellant for CENVAT Credit as a recipient of the service. The decision ultimately favored the appellant, allowing the stay application and the appeal.