2009 (12) TMI 182 - AT - Service Tax

Tribunal rules in favor of appellant, overturns service tax credit demand.

The Tribunal ruled in favor of the appellant, setting aside the demand for service tax credit, interest, and penalty imposed by the Commissioner ... Cenvat credit - reversal on removal of inputs as such under rule 3(5) of the Cenvat Credit Rules, 2004 - scope of the term 'inputs' under the Cenvat Credit Rules - service tax credit on GTA/transportation services - definition of Cenvat credit under rule 3(1) and its interaction with rule 3(5)Reversal on removal of inputs as such under rule 3(5) of the Cenvat Credit Rules, 2004 - service tax credit on GTA/transportation services - scope of the term 'inputs' under the Cenvat Credit Rules - Whether service tax credit availed on GTA/transportation of inputs must be reversed under rule 3(5) when those inputs are removed as such from the factory. - HELD THAT: - Sub rule (5) of rule 3 requires that when inputs on which Cenvat credit has been taken are removed as such from the factory an amount equal to the credit availed in respect of such inputs shall be paid. A plain reading confines the obligation to the credit availed in respect of the 'inputs' themselves. The term 'inputs' denotes input goods and does not extend to input services consumed in bringing those goods to the factory. Although rule 3(1) defines 'Cenvat credit' to include service tax, rule 3(5) prescribes reversal tied to credit in respect of the inputs removed as such and does not expressly require reversal of service tax credit on transportation services. The Tribunal's earlier decision in Chitrakoot Steel & Power (P.) Ltd. was applied to reach this conclusion. For these reasons the demand for reversal of service tax credit on GTA services in respect of inputs removed as such was unsustainable. [Paras 5]Demand and penalty for reversal of service tax credit on GTA services set aside; appeal allowed.Final Conclusion: The Tribunal held that rule 3(5) requires reversal only of credit availed in respect of the input goods removed as such and does not mandate reversal of service tax credit on transportation services; the impugned order confirming demand and penalty in respect of such service tax credit was set aside and the appeal allowed. Issues:Applicability of rule 3(5) of the Cenvat Credit Rules regarding reversal of service tax credit on GTA services availed for transportation of inputs.Analysis:The appellants, engaged in manufacturing Non-Alloy Steel Ingots, availed Cenvat credit under the Cenvat Credit Rules for various inputs, capital goods, and input services. The dispute arose when the appellant availed Cenvat credit for service tax on GTA services used for transporting inputs to the factory but only reversed the credit of Central Excise Duty upon clearing the inputs. The Department contended that as per rule 3(5) of the Cenvat Credit Rules, the appellant should have also reversed the credit of service tax on the GTA service at the time of removal of the inputs. The Assistant Commissioner upheld the demand for service tax credit along with interest and imposed a penalty. The Commissioner (Appeals) affirmed this decision, leading to the present appeal.None appeared for the appellant during the hearing, but they requested a decision on merits based on a Tribunal judgment in a similar case where a favorable decision was given. The Departmental Representative argued that as per rule 3(5) of the Cenvat Credit Rules, the appellant was required to reverse the credit of service tax on GTA services when removing inputs as such from the factory. He emphasized that the term 'Cenvat credit' includes the credit of service tax on transportation charges for bringing goods to the factory, and thus, the impugned order was correct.Upon considering the submissions and perusing the records, the Tribunal analyzed the provisions of rule 3(5) of the Cenvat Credit Rules. The rule mandates that when inputs on which Cenvat credit has been taken are removed as such, the manufacturer must pay an amount equal to the credit availed in respect of those inputs. The Tribunal noted that the rule only refers to the credit of duties of excise and does not explicitly require the reversal of service tax credit on input services like transportation. Referring to a previous Tribunal judgment in a similar case, the Tribunal concluded that the word 'inputs' in the rule pertains to input goods and not input services. Therefore, the Tribunal set aside the impugned order, ruling in favor of the appellant and allowing the appeal.