2007 (5) TMI 147 - AT - Service Tax

Application Nos. E/904-905/2007-SM(BR) in Stay/Dispensation of pre-deposit - Appellant availed Cenvat credit of services undertaken by them in respect of the final product (cement) cleared by them from depot and also supported by circular issued by CBEC - Waiver of service tax and penalty allowed on the strength of said circular

Summary

Issues:
1. Delay in filing appeal due to change in job position.
2. Eligibility for availing Cenvat credit on services related to final product clearance.
3. Interpretation of Board Circular dated 2-2-2006 regarding service tax credit.
4. Adequacy of reasons for denying Cenvat credit.
5. Waiver of duty and penalty based on the Board's Circular.
6. Pre-deposit requirement during appeal pendency.

Analysis:
1. The appellant sought condonation of a 10-day delay in filing the appeal due to a job change by the Manager. The Tribunal, considering the circumstances, condoned the delay.

2. The appeal challenged the denial of Cenvat credit for services like business auxiliary, cargo handling, and C & F agent services related to cement clearance. The Commissioner held that the depot did not qualify as a "place of removal." The appellant cited a Board Circular allowing credit for goods sold from a depot. The Tribunal found merit in the appellant's argument for credit up to the depot.

3. The Departmental Representative upheld the denial of Cenvat credit, emphasizing the lower authorities' stance. However, the Tribunal noted the lack of adequate reasoning in the lower authorities' decisions and stressed the need for clear justifications, especially regarding the Board Circular's interpretation.

4. The Tribunal observed a strong argument favoring the appellant's eligibility for service tax credit up to the depot, supported by the Board Circular. Consequently, the Tribunal acknowledged the appellant's case for waiver of duty and penalty based on the Circular's provisions.

5. Considering the circumstances, the Tribunal waived the pre-deposit requirement for the appeals' pendency, scheduling them for final hearing in due course. Both stay applications were disposed of accordingly, ensuring a fair hearing process without pre-deposit obligations.