2011 (3) TMI 1264 - AT - Service Tax

Tribunal denies stay for service tax credit misuse on outward freight services.

The Tribunal denied the application for a stay of the order confirming a demand of Rs. 24,49,475/- for wrongly availing service tax credit on outward ... Application for stay - Demand - outward freight services - Circular No. 97/6/2007-S.T., dated 23-8-2007 - Held that:- Mere pendency of an issue before the High Court itself cannot give a justification for the Tribunal not to look into the matter or adjourn the matter on that ground - High Court in case of Ambuja Cements Ltd. v. Union of India reported in (2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT) wherein it was held that relying upon the above-mentioned circular of the Board has held that the service of transportation of goods up to the customer’s door step in case of FOR destination sales, where the entire cost of freight is paid and borne by the manufacturer would be “input service” within the meaning of this term as defined in Rule 2(l) of the CCR, 2004 Regarding time limitation - Held that:- Mere submission that there were different decisions taking conflicting views cannot by itself be sufficient to hold the demand as time barred - no case having been made out for total waiver of amount demanded - Appeallant is directed to deposit 60% of the amount demanded Issues:Application for stay of order passed by Commissioner (Appeals) upholding demand of Rs. 24,49,475/- along with interest and penalty for availing credit of service tax on outward freight services not entitled to under Cenvat Credit Rules, 2004. Interpretation of definition of 'input service' under CCR, 2004 in relation to transportation of goods up to customer's door step. Consideration of conflicting decisions, retrospective application of circular, and justification for total waiver of demanded amount.Analysis:1. Stay Application: The appellants sought a stay of the order confirming a demand of Rs. 24,49,475/- along with interest and penalty for wrongly availing credit of service tax on outward freight services. The issue revolved around the interpretation of Cenvat Credit Rules, 2004, and whether the appellants were entitled to such credit.2. Interpretation of 'Input Service': The dispute centered on whether the transportation of goods up to the customer's door step qualified as an 'input service' under CCR, 2004. The appellants argued that based on relevant decisions and circulars, the freight charges to the customer's door step should be considered an input service eligible for Cenvat credit.3. Conflicting Decisions: The parties presented conflicting decisions to support their arguments. The Tribunal considered the relevance of conflicting views on the issue, emphasizing the need for reasoned decisions to clarify legal positions. The Tribunal highlighted the importance of a thorough analysis in arriving at logical conclusions, as per established legal principles.4. Retrospective Application of Circular: The appellants contended that circulars should not be applied retrospectively, relying on a specific case law. However, the Tribunal found that the demand was not based on a new circular but on statutory liability, making the retrospective application argument irrelevant in this context.5. Justification for Waiver: The Tribunal analyzed the arguments put forth by both parties and concluded that the appellants failed to establish a prima facie case for a total waiver of the demanded amount. Consequently, the Tribunal directed the appellants to deposit 60% of the confirmed duty amount, waiving interest and penalty, pending the appeal's disposal.In conclusion, the judgment addressed the issues of stay application, interpretation of 'input service,' consideration of conflicting decisions, retrospective application of circular, and justification for waiver comprehensively, providing detailed reasoning and legal analysis for each aspect of the case.