2018 (8) TMI 1230 - HC - Service Tax

CENVAT Credit - Rule 5 of CCR - Whether the CESTAT, Principal Bench, New Delhi under its order dated 11th April, 2013 is right in arriving at the conclusion that the assessee was required to be treated as Output Service Provider and, therefore, was entitled to have relaxation of CENVAT credit irrespective of the provisions of Rule 5 of the Rules of 2006? Held that - Though, Counsel for the appellant has tried to raise point that the Cenvat credit will be available not only for unutilized credit, however, the same point was not placed before the first authority - the observation made by the Tribunal treating the appellant as Output Service Provider is correct. Appeal dismissed - decided against appellant.

Summary

Issues:
Challenge to order of Learned Customs, Excise & Service Tax Appellate Tribunal - Whether appellant treated as Output Service Provider - Interpretation of Cenvat Credit Rules - Utilization of Cenvat credit - Application of Rule 5 of Taxation of Services Rules.

Analysis:
The High Court of Rajasthan addressed the challenge against the order of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, focusing on whether the appellant should be considered an Output Service Provider. The substantial question of law framed by the Court revolved around the interpretation of the Cenvat Credit Rules and the entitlement to relaxation of CENVAT credit. The appellant argued that they should be treated as a provider of output service based on specific rules under the Cenvat Credit Rules and the Service Tax Rules. The Court examined Rule 2(p), Rule 2(q), and Rule 2(r) of the Cenvat Credit Rules to determine the appellant's status as a person liable for paying service tax and, consequently, as an output service provider. The Court also considered Rule 5 of the Taxation of Services Rules, emphasizing the distinction between availing and utilization of Cenvat credit.

The Court analyzed the contentions of the appellant and the Revenue, highlighting the interpretation of the rules governing the taxation of services provided from outside India and received in India. The Court referred to a show cause notice issued by the Additional Commissioner, which clarified the treatment of taxable services for the purpose of CENVAT credit under the Cenvat Credit Rules, 2004. The notice emphasized that services not actually provided by the person liable to pay service tax are not considered output services, impacting the utilization of Cenvat credit. Rule 5 of the Taxation of Services Rules was cited to support the position that certain taxable services should not be treated as output services for availing Cenvat credit.

The Court considered the arguments presented by both parties and found that the Tribunal's decision to treat the appellant as an Output Service Provider was appropriate. The appellant's argument regarding the availability of Cenvat credit beyond unutilized credit was noted, although it was not raised before the first authority. Ultimately, the Court upheld the Tribunal's decision, concluding that there was no basis for interference. Consequently, the appeal was dismissed, affirming the status of the appellant as an Output Service Provider based on the interpretation of relevant rules and provisions governing Cenvat credit and service tax liability.