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2023 (3) TMI 438 - AT - Service TaxClassification of services - Port service or Cargo Handling Service? - service provided by the appellant within the port area - CENVAT Credit of service Tax on input services which has been provided for the services in relation to export Cargo - Credit was denied only on the ground that the same was utilized for payment of service tax on Cargo Handing Service in respect of export of Cargo which is excluded from the definition of Cargo Handling Service under Finance Act, 1994 - SCN is time barred or otherwise - penalties under Section 76 and 78 of Finance Act, 1994. CENVAT Credit - HELD THAT:- Even though the export Cargo Handling Service is not taxable but the appellant have admittedly paid the service tax and the same was accepted by the department as no objection was raised regarding the payment of service tax. In this fact, when the appellant has paid the service tax, the input service credit is admissible. The appellant have paid more amount of service tax as against the input tax credit, therefore, there is revenue neutral situation in the present case, however, this worksheet was given first time before this Tribunal which needs to be verified - As regard, the Cenvat credit in respect to the input service used in the non taxable output service on which the service tax paid this Tribunal has considered the issue in GATEWAY DISTRIPARKS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2018 (5) TMI 1138 - CESTAT MUMBAI] where it was held that Though the adjudicating authority decided the matter on principle but did not verify factual aspect of amount of cenvat credit attributed to the exempted cargo handling service vis-a-vis service tax paid by the appellant in respect of export cargo handling service, if it is found to be correct that that appellant have paid service tax which is more than the cenvat credit attributable to the export cargo handling then the demand will not exist. The matter needs to be re considered in the light of the above observation as well as the judgment on the identical issue - Appeal allowed by way of remand.
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