2009 (8) TMI 392

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....ey have paid Service Tax on the GTA services, by irregularly availing abatement of 75 per cent of the freight paid by them and paid Service Tax on remaining 25 per cent of the gross value, in terms of Notification No. 32/2004-ST, dated 3-12-2004. Another issue involved in this case is that respondents have paid Service Tax and education cess on the freight charges incurred on transportation of goods by wrongly utilizing the Cenvat credit contravening to the provision of sections 68 and 70 of the Finance Act, 1994 read with Rules 6 and 7 of the Service Tax Rules, 1994. Rule 3(4) of Cenvat Credit Rules, 2004 and Notification No. 35/2004-ST, dated 3-12-2005 on the ground that the services of transportation of goods by roads in goods carriage c....

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....output service' means any taxable service provided by the provider of taxable service, to service receiver. The definition of 'provider of taxable service' includes a person liable for paying service tax. Therefore, reading the two definitions in conjunction, it is clear that to from 'output service', taxable service is to be actually provided by the 'provider of taxable service'. Even if due to a legal fiction, a consignor or a consignee becomes a person liable to pay 'service tax' for the limited purpose of tax, it cannot be said that they have actually provided any taxable service. In the present case, the service provided by a Goods Transport Agent (GTA) for which the consignor or the consignee are made liable to pay service tax, does n....

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....esent case, the assessee is manufacturer of excisable goods and hence the reliance is totally misplaced. Hence, the assessee is not entitled to utilize the Cenvat credit for payment of Service Tax and Education Cess. (v) In view of the above position, it is clear that the reliance placed by Commissioner (Appeals) on the case laws mentioned at para 20 and (ii) is misplaced. 4. Ld. Counsel appearing on behalf of the respondents would submit that the issue is no more res integra and has been decided by the various decisions of this Tribunal in an identical issue and he would rely upon the recent decision of the Tribunal in the case of Andhra Pradesh Paper Mills Ltd. v. CCE [Final Order No. 728 (Bang.) of 2007 & A. ST/340 of 2006, dated 2....