2011 (10) TMI 251 - AT - Service Tax

Tribunal orders 50% deposit of Cenvat credit demand within 8 weeks. Waiver if not complied. Stay on balance recovery.

The Tribunal directed the appellants to deposit 50% of the confirmed Cenvat credit demand within eight weeks. Failure to comply would result in the waiver ... Credit on Services provided by GTA - Assessee on the basis of invoices of Transporter claimed the credit - Revenue contended in GTA services receipient is liable to pay tax and not the transporters - Held - Invoices/bills issued by the transporters mention some amount as service tax and also there are declarations that the service tax has been paid, no evidence in this regard, has been produced. Just on the basis of the declaration of the transporters on the consignment note/invoices /bills issued by them that the service tax has been paid, it cannot be assumed that the service tax liability had been discharged by the transporters. Decided against assessee. Issues:1. Liability of service tax payment for GTA services received by manufacturers of excisable goods.2. Validity of availing Cenvat credit based on invoices issued by transporters in GTA services.3. Rejection of Cenvat credit and imposition of penalties by the Department.4. Appeal against the orders of the Commissioner (Appeals) and stay applications.Analysis:1. The case involved the liability of manufacturers of excisable goods for the payment of service tax on GTA services received from transporters. The appellants claimed that the transporters had paid the service tax as mentioned in the invoices issued by them. However, the Department issued show cause notices for recovery of allegedly wrongly taken Cenvat credit, contending that in the case of GTA services, it is the recipient who is liable to pay the service tax.2. The appellants argued that Rule 9(1)(e) of the Cenvat Credit Rules allows availing Cenvat credit based on invoices issued by the provider of taxable services, which in this case were the transporters. They maintained that the invoices clearly indicated payment of service tax by the transporters, supported by declarations, making the availed Cenvat credit legitimate. The Department, on the other hand, emphasized that the service recipient is deemed the provider of taxable services in GTA services, and the appellants failed to provide concrete evidence that the service tax had been paid by the transporters.3. The original adjudicating authority confirmed the Cenvat credit demands, imposed penalties, and upheld by the Commissioner (Appeals). The Department argued that the appellants did not produce sufficient evidence, such as challans, to prove that the GTA service providers had paid the service tax. The Tribunal noted that mere declarations on invoices were insufficient to establish that the service tax liability had been discharged by the transporters, leading to a rejection of the appellants' prima facie case.4. After considering arguments from both sides and reviewing the records, the Tribunal directed the appellants to deposit 50% of the confirmed Cenvat credit demand within eight weeks. Failure to comply would result in the waiver of the remaining pre-deposit requirements. The recovery of the balance amount, interest, and penalties was stayed pending the appeal's disposal, subject to the appellants' compliance by a specified date.