2019 (6) TMI 568 - AT - Service Tax

CESTAT Mumbai: Appellate Tribunal rules in favor of Appellant, allowing Cenvat credit eligibility and waiving penalties

The Appellate Tribunal CESTAT Mumbai allowed the Appeal, ruling in favor of the Appellant in a case concerning Cenvat credit eligibility and penalty ... CENVAT Credit - input services - Demurrage Charges - HELD THAT:- These demurrage charges were charged during the course of providing services to the Appellant by the service provider. During the course of providing services to the appellant, sometimes the goods are retained at the airport beyond the free period and in such cases the airport would charge the service recipient i.e. the appellant, demurrage for the period for which the goods were stored in excess of the free period. It is not the case of revenue that no demurrage charges have been paid. Demurrage is part of handling of import and export shipments of the appellant and therefore the Cenvat credit of tax paid on such demurrage charges is available to the appellant. - credit allowed. CENVAT credit - Repair & Maintenance - rejection on the ground that Vehicle not owned by the appellant - HELD THAT:- Admittedly the appellant are not owner of those vehicles. It is rejected on the ground that no evidence has been produced to show that the onus to repair the hired vehicles is on the appellant. To keep the vehicle in good condition is very essential for providing the courier service by the Appellant because if the vehicles are in good conditions only then the appellant can provide the satisfactory and efficient services to its clients and therefore it has nexus with the output service. The Appellant has also paid the service tax charged on the invoice to the vendor and this has not been disputed - credit allowed. CENVAT credit - Reimbursement of expenses Such as mobile bills, telephone bills - rejection on the ground that Telephone not installed at appellant’s premises but of PAFEX and used by them - HELD THAT:- It can be said that the aforesaid services has been used for business activity of the appellant. These services are input service used for output service, in particular, when the Revenue could not establish with any evidence that the octroi/telephone/mobile has been used by the said M/s. Pafex for its personal use - credit allowed. CENVAT Credit - Reimbursement charges paid to M/s Jeena & Co. - denial on account of nexus - HELD THAT:- The customs clearance services provided by FedEx Express is directly connected with the courier services of import and export shipments provided by the Appellant, without which the Appellant cannot provide services to its customers, therefore undoubtedly the same is ‘input service’. Merely because the invoice of FedEx Express recorded that the charges are recovered as reimbursement charges of Jeena & Co., it does not take away the fact that it is essentially the consideration for the customs clearance services provided by FedEx Express through Jeena & Co. to the Appellant - credit allowed. Demand of Interest and penalty - HELD THAT:- Since the Cenvat Credit on the aforesaid services is allowed therefore there is no question of any interest or penalty. Appeal allowed - decided in favor of appellant. Issues: Eligibility for Cenvat credit under Rule 14 of Cenvat Credit Rules, 2004 and liability for penalty under Section 78 of the Finance Act, 1994 in respect of credit availed on admissible input services.Analysis:1. The Appeal was filed against an order passed by the Commissioner of CGST & Central Excise regarding the eligibility of the Appellant for Cenvat credit and penalty under Section 78.2. The Appellant, a corporation engaged in various services, was found to have wrongly availed and utilized Cenvat credit on ineligible services, leading to a demand notice being issued.3. The Appellant argued that certain expenses formed part of taxable output services and should not be disallowed from Cenvat credit. The Commissioner disallowed credit on reimbursement of customs clearance expenses to FedEx Express, citing lack of nexus between services provided.4. The Appellant contended that the customs clearance services were essential for its business activities and qualified as input services under the Cenvat Credit Rules. The agreement between the Appellant and FedEx Express supported this claim.5. The judgment highlighted the contractual relationship between the parties, emphasizing that the reimbursement charges were directly linked to the customs clearance services provided by FedEx Express through a third-party subcontractor.6. The credit for Repair and Maintenance expenses was allowed as it was deemed essential for providing satisfactory services, even though the vehicles were not owned by the Appellant.7. Regarding expenses like Octroi, mobile, and telephone bills, the Appellant argued that these were incurred for business activities and should qualify as input services. The judgment favored the Appellant's stance, noting the lack of evidence showing personal use by the service provider.8. Demurrage charges were also contested, with the Appellant asserting that they were part of handling import and export shipments, making them eligible for Cenvat credit. The judgment agreed with this argument.9. Ultimately, the Appeal was allowed, granting relief to the Appellant as Cenvat credit was deemed admissible for the contested services, leading to no interest or penalty being imposed.This detailed analysis covers the issues of Cenvat credit eligibility and penalty liability, providing insights into the arguments presented and the judgment rendered by the Appellate Tribunal CESTAT Mumbai.