2014 (1) TMI 1453 - AT - Service Tax

Tribunal denies full waiver request for ineligible cenvat credit, directs partial deposit

The tribunal denied the appellant's request for a complete waiver of confirmed amounts related to ineligible cenvat credit. The appellant was directed to ... Ineligible canvat credit against TR-6 Challan - Reversal of credit taken suo-moto - Waiver of Pre-deposit – Held that:- There was no merits in the contentions of assessee that at the stay stage as on a plain reading of Rule 4(a) of Service Tax Rules, the rule is applicable only in the case where service provider has paid excess service tax in a quarter and adjust the excess paid for the discharge of service tax in the subsequent quarters - that appellant has not made out a prima facie case for complete waiver – assessee directed to deposit – Rupees sixty thousand as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Partial stay granted. Issues:Waiver of pre-deposit of an amount, eligibility of cenvat credit availed by the appellant, interpretation of Rule 4(a) of the Service Tax Rules.Analysis:The appellant filed a stay petition seeking the waiver of pre-deposit of an amount, interest, and penalty imposed by the lower authorities, totaling Rs. 1,23,992. The said amounts were confirmed as ineligible cenvat credit availed by the appellant based on TR-6 Challans used to discharge service tax liability as commission income. The appellant received a yearly turnover discount for raw material purchases from a specific company, which was considered as commission for service tax liability under Business Auxiliary Services. The appellant later took suo-moto credit of the amount upon realizing the error. The lower authorities issued a show cause notice for the reversal of the credit taken. The appellant argued that Rule 4(a) of the Service Tax Rules exempts them from paying the service tax liability, but the tribunal found no merit in this argument. The rule only applies when a service provider pays excess tax in a quarter and adjusts it in subsequent quarters, not in the present case.The tribunal concluded that the appellant failed to establish a prima facie case for a complete waiver of the confirmed amounts. Consequently, the tribunal directed the appellant to deposit Rs. 60,000 within eight weeks and report compliance by a specified date. Upon verification of compliance, the application for the waiver of the remaining balance was allowed, and recovery was stayed until the appeal's disposal. This decision was dictated and pronounced in court by the tribunal.This judgment primarily revolved around the appellant's request for the waiver of pre-deposit related to cenvat credit availed, interpreting the applicability of Rule 4(a) of the Service Tax Rules. The tribunal carefully analyzed the facts, arguments presented, and relevant legal provisions to determine the merit of the appellant's case. Ultimately, the tribunal found the appellant's arguments regarding Rule 4(a) to be unconvincing and directed a partial deposit while allowing a stay on the recovery of the remaining balance pending appeal disposal.