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2023 (2) TMI 829 - AT - Service TaxCENVAT Credit - classification of service - Business Auxiliary Service or Sponsorship Service? - classification of service can be disputed at recipient end or not - denial on the ground that service being classifiable under Sponsorship Service, the appellant was supposed to discharge the service tax under GR-7 Challan - HELD THAT:- The service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. has classified the service under Business Auxiliary Service, in such case it is the service provider who is suppose to pay the service tax and the appellant can take the cenvat credit only on the basis of invoice issued by the service provider. The entire basis of the department’s case is dispute on the classification made by the service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. M/s. K.P.H. Dream Cricket Pvt. Ltd. has classified the service under Business Auxiliary Service and discharged the service tax and issued the invoice. Firstly, the classification of service cannot be disputed at the recipient end secondly, the classification of service maintained by the service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. has been considered in judgment of M/S COCA COLA INDIA PVT. LTD. VERSUS CST, DELHI-III [2014 (12) TMI 667 - CESTAT NEW DELHI] where it was held that Demand of service tax in respect of the same transaction on the ground that the deposit of service tax was under a different category whereas a different category of service has been provided cannot be held to be justifiable. Thus, it can be seen that the only difference is that in the present case the cenvat credit was denied on the same ground on which the service tax was demanded in the above case. The dispute was same that the service falls under Sponsorship Service however, the tribunal in the case of COCA COLA INDIA PVT. LTD. held that at the recipient’s end the classification cannot be changed - since the classification of service cannot be challenged at the recipient’s end, the cenvat credit availed by them cannot be disputed. Appeal allowed.
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