2008 (9) TMI 517 - AT - Service Tax

Appellate Tribunal grants waiver in credit case despite lack of evidence

The Appellate Tribunal CESTAT, Mumbai granted the application for waiver of pre-deposit in a case involving inadmissible credit under Rule 6(3)(d)(iii) of ... Stay – Cenvat Credit of Service Tax - The demand has been confirmed by adopting the method prescribed under Rule 6(3)(d)(iii) of the Cenvat Credit Rules, 2004, which was introduced in the statute book from 1-4-2007 for apportioning common services between dutiable services and exempted services based on percentage of sales of finished products. Commissioner rejected worksheet on the ground that application not furnished basis for quantification and filed to produce any documentary evidence regarding non availment of Service tax credit. Held that – appellant reversed the credit. Pre deposit waived. Issues: Application for waiver of pre-deposit of inadmissible credit, demand confirmed under Rule 6(3)(d)(iii) of Cenvat Credit Rules, 2004, satisfaction of amount already paid, rejection of worksheet by Commissioner, lack of documentary evidence on non-availment of service tax credit on advertisement services.Analysis:The judgment by the Appellate Tribunal CESTAT, Mumbai involved a case where the applicants sought waiver of pre-deposit of a substantial amount being the balance of inadmissible credit. The credit availed on services used for traded and non-excisable goods, along with Education Cess on service tax, formed part of the demand amount, which also included interest and penalty. The demand was confirmed under Rule 6(3)(d)(iii) of the Cenvat Credit Rules, 2004, which focused on apportioning common services between dutiable and exempted services based on the percentage of sales of finished products.Upon examination, the Tribunal found that the applicants had demonstrated that the amount already paid constituted the only credit availed on services used for traded and non-excisable goods, as supported by a worksheet. The Commissioner did not dispute the amount shown in the worksheet but raised concerns regarding the lack of documentary evidence concerning the non-availment of service tax credit on advertisement services. The Tribunal noted that the Commissioner had the opportunity to request further substantiation from the applicants regarding the computation of credit availed, which was not done. Consequently, the Tribunal accepted the reversal of credit as the total amount required to be reversed, rather than applying a method introduced after the disputed period. As a result, the Tribunal decided to waive the pre-deposit of the amounts in question and stayed the recovery pending the appeal.In conclusion, the judgment highlighted the importance of providing documentary evidence to support claims regarding the availed credit and emphasized the need for authorities to seek clarification before making adverse decisions. The Tribunal's decision to waive the pre-deposit was based on the satisfaction that the applicants had adequately demonstrated the credit availed, despite the lack of additional documentation on certain aspects.