2015 (9) TMI 211 - AT - Service Tax

Denial of refund claim - Refund of unutilized CENVAT Credit - Revenue contend that the service provided by the service provider was supply of tangible goods service and this service became liable to service tax only from 16.05.2008 and therefore since tax itself was not liable to be paid and the assessee could not have taken the credit - Held that - It is not the service receiver s responsibility to determine when the service provider was liable to pay tax or not. Therefore this Rule 6(2) is not relevant. I also find force in the argument that when the show-cause notice did not take the ground that service provider was not liable pay the tax, the Revenue could not have raised a totally new ground before the Tribunal. The submission of the learned counsel and the reliance upon the decision in the CC Mumbai Vs Toyo Engineering India Ltd 2006 (8) TMI 184 - SUPREME COURT OF INDIA is relevant. - Decided against Revenue.

Summary

Issues:
Refund claim rejection grounds - Invoices conformity, Rule 4(7) contravention, Exempt final product, Non-input service
New ground appeal by Revenue - Service provider's service as tangible goods, Tax liability, Credit inadmissibility

Refund Claim Rejection Grounds Analysis:
The assessee, engaged in iron ore fines manufacture and export, filed a refund claim under Rule 5 of CENVAT Credit Rules 2004, seeking refund of &8377; 31,34,108 for Jan-Mar 2009 due to unutilized CENVAT credit. The claim was challenged citing non-conformity of invoices, contravention of Rule 4(7), exemption of final product, and non-input service. The Commissioner (Appeals) overruled the rejection, finding no grounds valid to deny the refund claim.

New Ground Appeal Analysis:
The Revenue appealed on a new ground, arguing that the service provided by the service provider was taxable as tangible goods service from 16.05.2008 onwards. The Revenue contended that since tax was not payable on the service, the assessee could not have claimed credit. The Tribunal noted that the Revenue's appeal failed to quantify the correct disallowed amount and focused on inadmissible amounts. The Tribunal emphasized that the responsibility to assess tax liability rests with the service provider, not the receiver. Additionally, the Tribunal highlighted that the Revenue could not introduce a new ground not raised in the show-cause notice. The Tribunal referenced the decision in CC Mumbai Vs Toyo Engineering India Ltd [2006 (201) ELT 513 (SC)] to support this position.

In conclusion, the Tribunal rejected the Revenue's appeal, stating that the appeal could not be allowed on legal or merit grounds. The discussion underscored that the appeal was not valid, either on the basis of merits or legal aspects. The Tribunal upheld that the appeal was unfounded and dismissed it accordingly.