2007 (11) TMI 135 - AT - Service Tax

Returned back some consignments of iron ore on which credit has been availed under the category GTA - when the credit-availed inputs or capital goods are removed from the factory, sub-rule (5) of Rule 3 of the Cenvat Credit Rules provides for recovery of equal amount of credit - there is no such provision to reverse credit of service tax availed in relation to such inputs or capital goods when removed from the factory Rule 14 not applicable credit not required to be reversed

Summary

Issues:
Demand of service tax and penalty imposition on appellants for availing service tax under "Goods Transport Agency" category on rejected iron ore consignments.

Analysis:
The Commissioner (Appeals) sustained a demand of service tax and vacated a penalty on the appellants for availing service tax under the "Goods Transport Agency" category on iron ore consignments returned due to sub-standard quality. The Assistant Commissioner demanded the credit under Rule 14 of the Cenvat Credit Rules read with Section 11A of the Central Excise Act, 1944. The learned Counsel argued that no requirement exists to reverse credit availed on returned inputs not used in final products, citing Rule 3 of the Cenvat Credit Rules, 2004. Additionally, a Department of Finance clarification supported that credit need not be repaid for inputs returned under GTA service.

The learned SDR defended the impugned order, stating that since the inputs were not used in final products, the service tax credit should be denied or recovered. However, upon careful examination of statutory provisions, it was found that while Rule 3 of the Cenvat Credit Rules, 2004 provides for recovery of credit on removed inputs or capital goods, there is no provision to reverse service tax credit on such inputs. Rule 14 of the Cenvat Credit Rules, 2004 allows recovery of wrongly availed credit, but in this case, the credit was correctly taken as per statutory provisions. The utilization of credit for paying duty on finished goods further supported the appellants' position. Consequently, the judgment found the demand of service tax and education cess to be unsustainable and vacated the same, allowing the appeal and disposing of the stay petition.

The judgment, delivered by Shri P. Karthikeyan, Member (T), on 29-11-2007, emphasized that the appellants were not obligated to repay the service tax credit availed under GTA service for transport of sub-standard inputs returned to the supplier. The decision highlighted the absence of provisions mandating the reversal of service tax credit in such scenarios, ultimately leading to the allowance of the appeal and the disposal of the stay petition.