2014 (12) TMI 281 - AT - Service Tax

Waiver of pre-deposit - Cenvat credit - Inputs used for providing Telecom service - Cenvat credit on (i) transmission towers and parts thereof; and (ii) prefabricated buildings/shelters - Bonafide belief of admissible credit - Held that - The Circular was issued in the end of February, 2008. Prior to that date, there was correspondence between the department and the appellant. The department asked for particulars of the Cenvat credit availed on towers and parts thereof and also on prefabricated buildings. These particulars were furnished by the party. This happened in January, 2008. There is no material on record to show that the appellant pleaded bona fide belief in their correspondence with the department. As regards ST-3 returns, we agree with the learned counsel that the format of return requires only the amount of Cenvat credit availed by the assessee during the period of return and does not require item-wise break up. However, every return was accompanied by a declaration. The assessee has declared inter alia that they have correctly availed credit in accordance with the provisions of the Finance Act, 1994 and rules thereunder. We have already dealt with those rules and have found that the definition of input during the material period was plain and simple. Apparently, it was only after consulting the legal provisions that the assessee in their returns declared as above. This is another factor which contradicts the plea of bona fide belief. - Partial stay granted.

Summary

Issues:

1. Admissibility of Cenvat credit on transmission towers and prefabricated buildings.
2. Invocation of extended period of limitation.
3. Plea of bona fide belief.
4. Compliance with legal provisions and declarations in ST-3 returns.
5. Financial hardships.

Admissibility of Cenvat credit on transmission towers and prefabricated buildings:

The appellant sought waiver of pre-deposit and stay of recovery regarding duty and penalty arising from the denial of Cenvat credit on transmission towers and prefabricated buildings used for providing telecom services. The appellant believed the credit was admissible, but the Commissioner disallowed it. The Tribunal noted the legal provisions and previous judgments, concluding that the towers and buildings did not qualify as 'goods' for Cenvat credit purposes.

Invocation of extended period of limitation:

The appellant argued that the demand was time-barred as the show cause notice was issued beyond the normal limitation period. They claimed a bona fide belief in availing the credit, citing legal precedents and circulars. However, the Tribunal found that the plea of bona fide belief was not raised timely and the legal provisions were clear during the disputed period, making the extended limitation period valid.

Plea of bona fide belief:

The appellant's plea of bona fide belief was not accepted as they failed to raise it in response to the show cause notice within the required timeframe. The Tribunal emphasized that the legal provisions were straightforward, and the appellant's belief contradicted the clear definition of 'input'. The appellant's selective availing of credit on different materials further weakened their claim of bona fide belief.

Compliance with legal provisions and declarations in ST-3 returns:

The Tribunal highlighted that the appellant's declarations in the ST-3 returns did not absolve them of non-compliance. While the return format did not require item-wise details, the appellant's declarations indicated compliance with the law. The Tribunal found that the appellant's actions did not align with a genuine bona fide belief, undermining their argument.

Financial hardships:

No plea of financial hardships was raised during the proceedings, and the Tribunal did not find any merit in this regard. The decision focused on the legal aspects of Cenvat credit admissibility and the invocation of the extended limitation period, disregarding financial considerations.

In conclusion, the Tribunal directed the appellant to pre-deposit a specified amount within a set timeframe, emphasizing the lack of a prima facie case on merits or limitation grounds. Compliance with the pre-deposit condition would result in a waiver of pre-deposit and a stay of recovery for the penalty and remaining tax dues.