2014 (4) TMI 540 - AT - Service Tax

Cenvat Credit - GTA Service - Held that - so long as the service tax payment by the service provider has not changed and no part of the service tax paid by him has been refunded to him, the Cenvat Credit on the basis of the invoices issued by the service provider cannot be denied to the service recipient. Even if there is dispute over the mode of payment of service tax by the service provider alleging that the service tax has been paid by wrong utilization of Cenvat Credit, this is not the ground on which the Cenvat Credit can be denied to the service recipient who had availed the Cenvat Credit on the basis of the invoices issued by service provider. The only situation in which the Cenvat Credit could be denied to the service recipient is when the service tax paid by the service provider and whose Cenvat Credit taken by the service recipient has been refunded to the service provider - Decided against Revenue.

Summary

Issues:
1. Dispute over Cenvat Credit eligibility due to service tax payment mode by service provider.
2. Denial of Cenvat Credit by the Revenue.
3. Appeal against Commissioner (Appeals) order.

Analysis:
1. The case involved a dispute regarding the eligibility of Cenvat Credit for the Respondent, a soap and detergent manufacturer, due to the mode of service tax payment by the service provider, M/s. Ghari Industries Pvt. Ltd. The Respondent used the "Ghari" brand owned by M/s. Ghari Industries and paid royalty, for which service tax was paid by M/s. Ghari Industries. The Revenue contended that as M/s. Ghari Industries paid service tax using GTA service Credit, which was deemed incorrect for Intellectual Property Right (IPR) service, the Respondent should not be eligible for Cenvat Credit.

2. The Additional Commissioner and Jurisdictional Assistant Commissioner had confirmed a Cenvat Credit demand against the Respondent based on the alleged incorrect payment of service tax by M/s. Ghari Industries. The Commissioner (Appeals) set aside the Assistant Commissioner's order, leading to the Revenue's appeal. The Revenue argued that since service tax was wrongly paid by M/s. Ghari Industries using GTA service Credit, the Respondent should not receive Cenvat Credit. However, the Respondent contended that as long as the service tax payment by M/s. Ghari Industries remained unchanged and not refunded, the Cenvat Credit based on their invoices should not be denied.

3. The Tribunal, after considering both parties' arguments and examining the records, held that the dispute over the mode of service tax payment by M/s. Ghari Industries should not affect the eligibility of Cenvat Credit for the Respondent. The Tribunal emphasized that unless the service tax paid by the provider and utilized for Cenvat Credit was refunded, the recipient should not be denied the credit. As there was no refund of service tax to M/s. Ghari Industries, the Cenvat Credit based on their invoices should stand. Therefore, the Tribunal dismissed the Revenue's appeal, upholding the Commissioner (Appeals) decision in favor of the Respondent.