2013 (2) TMI 77 - AT - Service Tax

Tribunal grants stay petition, allows appeal, and deems appellant eligible for abatement under Finance Act.

The Tribunal found in favor of the appellant, setting aside the impugned order and allowing the appeal. The stay petition for waiver of pre-deposit of ... Goods Transport Agency - Eligibility to claim abatement under notification No. 32/2004-ST – Whether recipient of GTA service is required to furnish evidence of GTA not availing benefit of CENVAT scheme to qualify for the benefit of Notification 32/2004 - ST Service provider has given a general declaration as regards non availment of cenvat credit – Held that:- Following the decision in case of ARANI AGRO OIL INDUSTRIES LTD. (2011 (1) TMI 715 - CESTAT, BANGALORE) that recipient of GTA service was not required to furnish evidence of not availing cenvat scheme to qualify for the disputed benefit. Moreover, the benefit is denied for the reason that declaration of GTA as regards not availing the Cenvat credit was not available on each consignment note. We find that there is no such condition in the notification. In favour of assessee Issues:1. Waiver of pre-deposit of service tax and penalties under Finance Act, 1994.2. Eligibility to claim abatement under notification No. 32/2004-ST based on the general declaration regarding non-availment of cenvat credit.Analysis:Issue 1: Waiver of pre-deposit of service tax and penalties under Finance Act, 1994The stay petition was filed for the waiver of pre-deposit of service tax amounting to Rs. 2,17,92,200/- and penalties imposed under various sections of the Finance Act, 1994. The amounts were confirmed with interest and penalties due to the appellant allegedly improperly availing the benefit of notification No. 32/2004-ST without filing a declaration on each consignment note regarding non-availment of cenvat credit by the transporters. After hearing both sides, the Tribunal found that the appeal could be disposed of at that stage, allowing the stay petition and proceeding with the appeal for disposal.Issue 2: Eligibility to claim abatement under notification No. 32/2004-STThe main issue in this case revolved around the eligibility of the appellant to claim abatement under notification No. 32/2004-ST based on a general declaration regarding non-availment of cenvat credit. The appellant had filed a general declaration before the lower authorities, and the Tribunal noted that this issue was covered by a previous decision of the Tribunal in the case of Arani Agro Oil Industries Limited vs. CCE, Visakhapatnam -2010. The Tribunal highlighted that the appellant had satisfied the necessary conditions prescribed in the notification and that there was no requirement for the declaration to be endorsed on each consignment note. The Tribunal held that the Circular issued by CBEC could not prescribe a condition not present in the Notification, and therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellant.In conclusion, the Tribunal found in favor of the appellant, stating that the impugned order was not in accordance with the law, and therefore, set it aside. The appeal was allowed, and the stay petition was also disposed of. The Tribunal emphasized that the conditions prescribed in the Notification should be the determining factors for availing benefits, and additional requirements imposed through circulars could not override the Notification's provisions.