2008 (8) TMI 58 - AT - Service Tax

Present Application is for modification of stay order dated 10-6-2008 directing the Appellant to deposit 50% of the Service tax - held that mere for pendency of a reference before Larger Bench regarding issue of admissibility of credit of service tax paid on outward freight waiver cannot be granted from full amount moreover appellant has not proved use of GTO service in or in relation to manufacture of goods hence full relief cannot be granted

Summary

Issues:
1. Modification of stay order for deposit of service tax.
2. Entitlement to Cenvat credit on service tax paid on G.T.A.
3. Interpretation of input service under Cenvat Credit Rules, 2004.
4. Financial difficulty as a reason for non-deposit.
5. Prejudice to revenue if pre-deposit is waived fully.

Analysis:
1. The Appellant sought modification of the stay order to deposit 50% of the service tax payable within four weeks. The Appellant claimed entitlement to Cenvat credit on service tax paid on G.T.A., arguing that ownership of goods and property remained with them until delivery, justifying Cenvat credit under C.B.E.C. Circular No. 97-8-07-S.T. They cited relevant case law to support their position.

2. The Appellant also referred to the Cenvat Credit Rules, 2004, emphasizing that outward transportation of the final product should be considered an "input service" eligible for credit. They highlighted financial difficulty as a reason for seeking full stay of demand realization, further supporting their case.

3. The Revenue contended that the interpretation of "input service" should not extend beyond the point of manufacture, as any other interpretation would misuse Cenvat credit. They argued that the Appellant's claims were not supported by evidence and were contrary to the law's basic structure, emphasizing the necessity for a direct link to manufacturing.

4. After hearing both sides, the Tribunal noted the absence of material supporting the Appellant's claims and the lack of evidence to justify full waiver of pre-deposit. The Tribunal also considered the pending controversy awaiting a decision by the Larger Bench, indicating that relief could not be granted solely based on the pendency of a reference.

5. The Tribunal acknowledged the Appellant's financial crisis but emphasized the need for concrete evidence to support such claims. Citing relevant legal precedents, the Tribunal directed the Appellant to deposit 50% of the service tax demanded by a specified date to stay the realization of the remaining balance until the Appeal's disposal, balancing the interests of both parties and following established legal principles.