2013 (11) TMI 1404 - AT - Service Tax

Discharge of service tax liability - Storage and Warehousing Services - Import of Ammonia - Demand of duty, interest and penalty Bar of limitation - Held that - Demand is time barred as extended period is not invokable as no such point was taken by the first audit of their premises done by Revenue. It is observed that appellants have filed the required periodical returns with the department showing the credit taken. It may be true that copies of the documents on the basis which credits are taken are not enclosed with the periodical returns filed with the department. But all the Cenvat credit taking documents are required to be seen by the Revenue during audit exercise to ensure that credit has been correctly taken by an assessee. However, if the improper credit taken is detected by the revenue in the very first audit, still there could be a case for application of extended period in view of the provisions contained in the Cenvat Credit Rules, 2004 - prima facie case for complete waiver of the confirmed dues and penalty on time barred - Following decision of Commissioner of Central Excise, Bangalore vs. M/s. MTR Foods Limited 2012 (10) TMI 165 - KARNATAKA HIGH COURT - Stay granted.

Summary

Issues involved:
Admissibility of Service Tax on Jetty, Wharfage, and Port Charges for own cargo imports in relation to Storage and Warehousing Services; Invocation of extended period for issuing show cause notice.

Analysis:

Issue 1: Admissibility of Service Tax on Imports
The appellant filed a stay application against an order regarding the admissibility of Service Tax paid on Jetty, Wharfage, and Port Charges for their own cargo imports in the context of providing Storage and Warehousing Services. The appellant argued that previous audits did not raise objections to the credit taken on this issue, and thus, the extended period for issuing a show cause notice should not apply. The Revenue contended that the Service Tax paid by the appellant on port services for own imports of Ammonia cannot be used for storage and warehousing services. The Tribunal noted that the credit documents should be reviewed during audits to ensure correct credit taken by the assessee. The Tribunal referred to case law to support the argument that if improper credit is detected in the first audit, the extended period could be applied, but subsequent audits may not warrant the same.

Issue 2: Invocation of Extended Period
The appellant argued that the demand was time-barred as the extended period was not appropriately invoked due to no objection raised in the first audit. The Tribunal considered the case law where it was held that if returns were filed promptly, and credit was accepted in the first audit, then initiating proceedings in a subsequent audit may not justify extending the limitation period. The Tribunal found merit in the appellant's argument and granted a stay against the recovery of confirmed dues and penalty until the appeal's disposal. The legal position supported the appellant's case for a complete waiver of confirmed dues and penalty due to being time-barred.

In conclusion, the Tribunal granted a stay against the recovery of dues and penalties, considering the legal arguments presented regarding the admissibility of Service Tax on imports and the invocation of the extended period for issuing show cause notices. The decision highlighted the importance of proper credit documentation review during audits and the limitations on invoking extended periods based on past audits and legal precedents.