2012 (8) TMI 1048 - AT - Service Tax

Tribunal rules in favor of appellant on service-related demand but not on CENVAT credit. Compliance may waive penalties.

M/s. Gina Engineering Company Pvt. Ltd. Versus The Commissioner of Service Tax, Bangalore

M/s. Gina Engineering Company Pvt. Ltd. Versus The Commissioner of Service Tax, Bangalore - TMI Issues involved: Application for waiver and stay of adjudged dues, interpretation of CENVAT Credit Rules 2004, limitation plea against demands.Waiver and Stay of Adjudged Dues: The appellant sought waiver and stay of the adjudged dues, which included service tax not paid on reimbursed expenses, CENVAT credit availed on input services, and 8% of the value of services rendered to SEZ units. The Tribunal found a prima facie case in favor of the appellant against the demand related to services rendered to SEZ units, based on a precedent case. However, regarding the demand for CENVAT credit availed on input services, the Tribunal did not find a prima facie case for the appellant. The appellant's claim of not availing the credit was not substantiated, and the Tribunal upheld the findings of the adjudicating authority in this regard.Interpretation of CENVAT Credit Rules 2004: The Tribunal noted that during the material period, the appellant paid service tax on Construction Service but claimed abatement without fulfilling a crucial condition of not availing CENVAT credit on inputs and input services. The appellant had availed CENVAT credit on input services related to Construction Service, which was contrary to the conditions of the abatement notification. The Tribunal held that the appellant did not make out a prima facie case on merits regarding this demand.Limitation Plea Against Demands: The appellant pleaded limitation against the demands, arguing that they had disclosed relevant facts to the department through letters. However, the Tribunal found that the letters did not convey the material facts regarding the CENVAT credit-related condition attached to the notification. The documents produced by the appellant were not referred to in their reply to the show-cause notice, and hence, the plea of limitation was not prima facie acceptable. The Tribunal also noted that the plea of financial hardships was not raised in the present application.Decision: The Tribunal directed the appellant to pre-deposit a specified amount within six weeks and report compliance. Subject to compliance, there would be a waiver of pre-deposit and stay of recovery concerning penalties imposed on the appellant and the demands mentioned in the case.