2014 (7) TMI 574 - AT - Central Excise

Waiver of pre-deposit - CENVAT credit availed on supplementary invoice issued by Job worker - belated payment of service tax by the Job Worker on BAS service - On the basis of the audit objection, the job worker paid the service tax and supplementary invoices were issued - denial as per Rule 9(1)(bb) of the CENVAT Credit Rules, 2004 - Held that - During the course of an audit objection, the job worker paid the service tax and raised supplementary invoices. As no show-cause notice was issued to the job worker to determine the fact that they have evade the payment of service tax by way of fraud, collusion or willful mis-statement or suppression of facts or contravention of Central Excise Act/Rules. Therefore, prima facie the applicant has made out a case for availment of service tax as per Rule 9(1)(bb) of the Central Excise Rule, 2004. Accordingly, waiver of the requirement of pre-deposit of the entire amount of duty, interest and penalty and stay recovery thereof during the pendency of the appeal is granted - Stay granted.

Summary

Issues:
- Waiver of pre-deposit of CENVAT credit denied
- Interpretation of Rule 9(1)(bb) of the CENVAT Credit Rules, 2004
- Allegations of fraud, collusion, or suppression of facts by the job worker

Waiver of Pre-deposit:
The appellants sought waiver of pre-deposit of CENVAT credit denied to them, along with interest and penalty under Rule 15(1) of the CENVAT Credit Rules, 2004. The case involved the denial of CENVAT credit based on the Revenue's view that the job worker had not paid service tax correctly. The appellant argued that since no show-cause notice was issued to the job worker to establish fraud or suppression of facts, they should be allowed to avail the credit. The Tribunal granted waiver of the requirement of pre-deposit, staying the recovery of the duty, interest, and penalty during the appeal process.

Interpretation of Rule 9(1)(bb) of the CENVAT Credit Rules, 2004:
The dispute centered around the interpretation of Rule 9(1)(bb) of the CENVAT Credit Rules, 2004, which deals with situations where a job worker has short paid or not paid service tax due to fraud, collusion, or suppression of facts. The Revenue contended that the job worker had suppressed facts by not paying service tax until after the department initiated proceedings. However, the appellant argued that since there was no finding of fraud or willful misstatement against the job worker, they should be allowed to claim the CENVAT credit. The Tribunal, after considering both sides, found that the job worker had paid the service tax upon audit objection without any show-cause notice determining fraudulent intent. Therefore, the Tribunal ruled in favor of the appellant, allowing them to avail the service tax credit under Rule 9(1)(bb).

Allegations of Fraud, Collusion, or Suppression of Facts by the Job Worker:
The core issue revolved around whether the job worker had engaged in fraud, collusion, or suppression of facts regarding the payment of service tax. The Revenue argued that the job worker had suppressed facts by not paying service tax until prompted by departmental proceedings. In contrast, the appellant contended that without a specific finding of fraud or willful misstatement against the job worker, they should not be penalized by denial of the CENVAT credit. The Tribunal noted that since no show-cause notice had been issued to the job worker to establish fraudulent intent, the appellant was entitled to avail the credit under Rule 9(1)(bb) of the Central Excise Rule, 2004. Consequently, the Tribunal granted the waiver of pre-deposit and stayed the recovery of the duty, interest, and penalty during the appeal process.