Appeal Allowed Due to Delay, CENVAT Credit Granted, Objections Deemed Unsustainable

The COD application was allowed due to a delay in filing the appeal, as the applicant provided a valid explanation for not receiving the order on time. The applicant's explanation was accepted, and the COD application was granted. Regarding the admissibility of CENVAT credit on service tax paid, the tribunal ruled in favor of the appellant, stating that the appellant was entitled to pay service tax on the full amount and claim the credit accordingly. The objections raised during the audit were deemed unsustainable, and the adjustment of excess paid service tax against subsequent liability was considered revenue neutral. The appeal was allowed in favor of the appellant, setting aside the impugned order.

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Issues:
1. Delay in filing COD application
2. Admissibility of CENVAT credit on service tax paid

Analysis:
1. The COD application was allowed due to the applicant's explanation of not receiving the impugned order on time, leading to a delay in filing the appeal. The applicant filed an affidavit explaining the delay, which was accepted as the department failed to provide evidence contradicting the reasons stated. The COD application was granted based on the applicant's explanation.

2. The appellant paid service tax on GTA on the full amount without availing the 75% abatement applicable and claimed credit for the full amount paid. An audit objection was raised stating that service tax is payable only on 25% of the transportation charges, making the credit on the remaining 75% inadmissible. The appellant reversed the credit and treated it as excess payment, adjusting it against the subsequent service tax liability. However, a show cause notice was issued citing a rule that excess paid service tax adjustment can only be made in the succeeding month, leading to a demand confirmation with interest and penalty.

3. The appellate authority rejected the appellant's appeal, upholding the demand. The tribunal, after considering submissions and records, found that the appellant was legally entitled to pay service tax on the full amount and claim CENVAT credit accordingly. The objections raised during the audit were deemed unsustainable, and the adjustment of excess paid service tax against subsequent liability was considered revenue neutral. The impugned order was set aside, and the appeal was allowed, ruling in favor of the appellant.

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