2008 (1) TMI 227 - AT - Service Tax

Service tax paid under GTA service on freight for transport of materials into the factory and for transport of final products to their buyers - Cenvat credit utilized for payment of service tax freight incurred for transport of materials into the factory during the period 1-1-05 to 30-9-05 as per Explanation to Rule 2(p) CCR, the inward transport is a GTA service and an output service, hence credit utilized validly - prima facie case against the impugned demand and penalties stay granted

Summary

Issues:
1. Utilization of Cenvat credit for payment of service tax on freight.
2. Interpretation of Rule 3(4) of Cenvat Credit Rules, 2004.
3. Whether the assessee is entitled to utilize Cenvat credit for GTA service.
4. Definition of output service under Rule 2(p).
5. Application of the Explanation to Rule 2(p) regarding GTA service.

Analysis:
1. The case involved the utilization of Cenvat credit for payment of service tax on freight for transport of materials into the factory. The original authority demanded service tax, education cess, and interest, along with imposing penalties on the assessee under various provisions of the Finance Act and Cenvat Credit Rules, 2004 (CCR).

2. The Commissioner affirmed the original authority's order, stating that the assessee, by paying service tax on freight for movement of materials, was considered a provider of output service. As per Rule 3(4) of CCR, a provider of output service is not entitled to utilize Cenvat credit. This rule allows the utilization of Cenvat credit for duty on final products or output service.

3. The appellants relied on tribunal decisions to support their case, citing that GTA service, for which service tax was paid, was considered output service. The Explanation to Rule 2(p) clarified that if a person liable for paying service tax does not provide any taxable service, the service for which tax is paid shall be deemed as output service. Therefore, Cenvat credit could be validly utilized for payment of service tax on this output service.

4. Rule 2(p) defines output service as any taxable service provided by the provider of taxable service to a customer. The Explanation further clarifies the treatment of services for which service tax is paid, emphasizing the eligibility to utilize Cenvat credit for such services.

5. Considering the submissions and records of the case, the Tribunal found that inward transport qualifies as a GTA service and output service. The Tribunal upheld the appellants' argument, stating that the Cenvat credit earned by the assessee could be utilized for payment of service tax on this output service. Consequently, the Tribunal ordered a waiver of predeposit and a stay of recovery of service tax, interest, and penalties until the final disposal of the appeal.