2014 (2) TMI 482 - AT - Service Tax

Tribunal limits demand period, cancels penalty, directs reevaluation

Lotte India Corporation Ltd. Versus Commissioner of Central Excise, Pondicherry

The Tribunal partially allowed the appeal, restricting the demand on both issues to the normal period of limitation. The penalty imposed was set aside, ... Cenvat Credit of service tax paid on GTA services paid on transportation of inputs to the job worker premises and transportation of goods from job worker premises to the depot of the appellant - Held that:- procedures laid down for taking credit cannot be by-passed based on argument of revenue neutrality or the argument that if not appellant someone else could have taken credit. During the relevant time there was considerable confusion about the scope of the expression service used for ‘clearance of final products from the place of removal’ which was used in definition at Rule 2 (l) (ii) of the definition of ‘input service’ - since this issue was one of legal interpretation of rules wherein two views were possible, demand may be restricted to normal period of limitation. - Decided partly in favor of assessee. Issues:1. Availment of Cenvat credit on service tax paid for transportation of inputs and goods from job worker to depot.2. Availment of Cenvat credit on service tax paid for transportation of goods from depot to dealers.Analysis:Issue 1: Availment of Cenvat credit on service tax for transportation of inputs and goods from job worker to depot:The appellant, engaged in manufacturing sugar confectionaries, availed Cenvat credit on service tax paid for transportation of inputs and final products from job workers to the depot. The Revenue contended that such credit was not valid as it was not directly related to excisable goods manufactured by the appellant. The demand was raised for recovery of the credit amount. The appellant argued that as the principal manufacturer, they controlled the quality of the final products and should be considered as the manufacturer. They also claimed that the matter was revenue-neutral as any duty paid by job workers would have allowed them to avail credit. The Tribunal, however, held that since the appellant did not perform the manufacturing activity or pay excise duty on the goods, they could not be considered the manufacturer and thus, were not eligible to avail the Cenvat credit.Issue 2: Availment of Cenvat credit on service tax for transportation of goods from depot to dealers:The appellant also took Cenvat credit on service tax paid for transportation of goods from the depot to dealers. The Revenue argued that such credit was not valid as the appellant was not the manufacturer of the goods and did not pay excise duty on them. The appellant contended that the goods were cleared from the depot to dealers, and the transportation cost incurred was eligible for credit as per the Cenvat Credit Rules. The Tribunal acknowledged the confusion regarding the interpretation of the term 'clearance of final products from the place of removal' but relied on the decision of the jurisdictional High Court to restrict the demand to the normal period of limitation.In conclusion, the Tribunal partially allowed the appeal by restricting the demand on both issues to the normal period of limitation. The penalty imposed was set aside, and the adjudicating authority was directed to quantify the amount accordingly.