2019 (5) TMI 702 - AT - Service Tax

Valuation - Outdoor catering service - includibility of 40% non-taxable service - abatement as per Rule 2C of the Service Tax (Determination of Value) Rules, 2006 - HELD THAT - Catering service includes both sale of food and service for consumption of food. Therefore the other component of 40% of gross value received from catering services cannot be definitely considered as exempted services to make Rule 6(3) of CENVAT Credit Rules, 2004 applicable and to maintain separate records for availment of CENVAT credit on it including on processed food purchased as raw material. Extended period of limitation - demand for the period prior to 01.06.2012 - HELD THAT - It cannot be said that only because audit party had found some credit availed has inadmissible, suppression of fact is made out - Extended period cannot be invoked. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Confirmation of duty demand on non-taxable component of services under Rule 2C of Service Tax Rules, 2006; Interpretation of Rule 6 of CENVAT Credit Rules, 2004; Maintainability of invocation of extended period for audit findings.

Analysis:

1. Confirmation of duty demand under Rule 2C: The appellant, a provider of outdoor catering services, challenged the duty demand of ?20,70,719 imposed by the Commissioner of GST & Central Excise. The dispute arose from the observation during an EA-2000 audit that the appellant had to reverse credit on the 40% non-taxable component of services exempted from taxation. The appellant contended that Rule 2C of the Service Tax Rules did not exempt any service or portion thereof, making the order erroneous. The appellant argued that the 40% component cannot be treated as exempted to apply Rule 6(3) of the CENVAT Credit Rules, 2004.

2. Interpretation of Rule 6 of CENVAT Credit Rules: The appellant highlighted inconsistencies in the Commissioner's decision regarding the exemption of the 40% component of outdoor catering services. The appellant argued that the Commissioner erred in applying Rule 6(3) of the CENVAT Credit Rules, as the service portion was determined at 60% of the gross value, leaving the remaining 40% not as an exempted portion. The appellant relied on various case laws to support their interpretation and distinction between valuation and CENVAT credit.

3. Maintainability of extended period for audit findings: The appellant challenged the invocation of the extended period for audit findings covering the period prior to 01.06.2012. The audit findings were the primary basis for initiating proceedings against the appellant. The appellant questioned the validity of the audit process, emphasizing that the audit was participative and aimed at ensuring compliance rather than indicating suppression of facts. The Tribunal found in favor of the appellant, setting aside the Commissioner's order.

In conclusion, the Appellate Tribunal allowed the appeal, setting aside the order of the Commissioner of GST & Central Excise. The judgment delved into the interpretation of rules governing duty demands on non-taxable components of services, the application of CENVAT Credit Rules, and the validity of invoking the extended period based on audit findings. The detailed analysis provided clarity on the legal arguments presented by both parties, leading to the Tribunal's decision in favor of the appellant.