2017 (11) TMI 1291 - AT - Service Tax

Tribunal allows appeal on Cenvat Credit, reduces penalty, deems Revenue's penalty enhancement appeal moot.

M/s Gail Gas Limited Versus C.C. And C.E. & S.T. Noida And (Vice-Versa)

M/s Gail Gas Limited Versus C.C. And C.E. & S.T. Noida And (Vice-Versa) - TMI Issues:1. Availment of Cenvat Credit of service tax paid by another entity.2. Liability to pay service tax on transportation of goods through pipelines.3. Justification for reversal of Cenvat Credit by the appellant.Analysis:Issue 1: Availment of Cenvat Credit of service tax paid by another entityThe appellant, a subsidiary of M/s Gail India Ltd., availed Cenvat Credit of service tax paid by M/s Gail India Ltd. The audit raised an objection that the appellant, only involved in purchasing and selling gas, was not entitled to this credit. A show cause notice was issued, demanding duty payment for a specific period. The original Adjudicating Authority confirmed the demand and imposed a penalty. The Commissioner(Appeals) upheld the duty confirmation but reduced the penalty to 25% if paid within 30 days. Both the appellant and the Revenue appealed against this order.Issue 2: Liability to pay service tax on transportation of goods through pipelinesThe core issue was whether the appellant was entitled to avail the credit of service tax paid by M/s Gail India Ltd. The Revenue argued that since the appellant did not undertake any taxable service through transportation of goods via pipelines, availing the credit was unjustified. On the contrary, the appellant contended that they paid service tax based on clarifications given by the Revenue to M/s Gail India Ltd., and thus, the credit was rightfully utilized.Issue 3: Justification for reversal of Cenvat Credit by the appellantThe appellant ceased taking the credit and stopped paying service tax on transportation activity from 2013 onwards. It was argued that the transportation charges were part of the gas value, and no service tax was required. Referring to a circular, it was clarified that in cases where the owner/seller sells and transports gas to the purchaser until delivery, the sale remains a contract of sale, not a works contract. The appellant's payment of service tax led to the utilization of the entire Cenvat Credit, indicating a reversal of the credit. Citing a precedent, it was established that demanding the availed credit again when already utilized for duty payment is unwarranted. The Tribunal set aside the impugned order, allowing the appellant's appeal, rendering the Revenue's appeal for penalty enhancement moot.This detailed analysis of the judgment highlights the key issues, arguments, and the Tribunal's decision, providing a comprehensive understanding of the legal aspects involved in the case.