TaxTMI 
TaxTMI 
2010 (9) TMI 815
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....able goods and holders of Central Excise registration certificate and are also registered for payment of service tax under the category of Goods Transport Agency (GTA services). The respondents had utilized cenvat credit in relation to the payment of service tax on GTA services received by them. The Department while contending that the respondents were not providers of taxable services to the customers or any other person but merely responsible for payment of service tax on GTA services received by them, and that they were not eligible for utilization of cenvat credit in relation to the service tax paid on GTA services received by them, issued show cause notice for denial of such cenvat credit for the period January, 2005 to September, 2005 to the extent of Rs. 19,392/-. The notice was contested by the respondents .and the Adjudicating Authority by its order dt. 26-6-2006 sought to deny the said cenvat credit and confirmed the demand along with the interest. However, he refrained from imposing any penalty. The respondents, being aggrieved, preferred appeal against the said order and Commissioner(Appeals), Bangalore by the impugned order dt. 17-10-2006 allowed the appeal and dropped....
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....rought in to the said Rules under Notification No. 8/2006-C.E. (N.T.), dt. 19-4-2006. Clause 2 of the said notification states that explanation clause to Rule 2(p) of the Cenvat Credit Rules, 2004 stood omitted. In other words for the period prior to 19-4-2006, the matters will have to be considered taking note of the effect of the explanation clause. 6. It is however the contention of the DR that the issue as to whether the Cenvat credit of service tax paid on Goods Transport Agency services for receipt of the input material is available for utilization for payment of tax in respect of Goods Transport Agency services received subsequently has been referred to a Larger Bench in Panchmahal Steel Ltd. 7. Before deciding the issue involved in the matter, it would be necessary to ascertain whether such an issue stands referred to the Larger Bench in Panchmahal Steel Ltd. case. 8. In Panchmahal Steel Ltd. case, undoubtedly the said issue had arisen for consideration by the Division Bench at Ahmedabad. While observing that the credit can be utilized only towards the payment of Central Excise duty on the goods cleared by the assessee or for paying service tax on the output servic....
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....nts of difference being stated a reference is required to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being made, can be heard by the President or the Member or Members only on the point or points of difference stated by the original Bench which heard the appeal. The President or the Third Member does not derive any independent jurisdiction and has no powers to decide the appeal in entirety. (18) The legislative intent discernible from a plain reading of the provision is to ensure that the appeal or appeals are to be disposed of only by the Bench originally assigned the appeal or appeals as ordered by the President on the administrative side. This becomes clear from a conjoint reading of sub-sections (1) and (4) of Section 129C of the Act. Sub-section (5) of Section 129C of the Act stands out in contrast and does not permit disposal of the appeal. In fact, after the President or the Third Member, who is assigned the case for hearing on the point or....
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.... true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the administration of justice. It is, however, equally true that it is vital to the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in the earlier case. In such circumstances, it is but natural and reasonable and indeed efficacious that the case is referred to a larger Bench. This is what was done by the Bench of two members who in their reasoned order pointed out what they perceived to be an error of law in the e....
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....l No. 167/2008 delivered on 25-8-2010 has held that references made without proper compliance of the directions issued by the Apex court in the above referred cases is bad. Without exactly disclosing the controversy which is required to be dealt with by the Larger Bench, any reference is not maintainable and therefore number of references have been returned unanswered. Taking clue from the said decisions and in particular, the decisions of the Hon'ble High Court of Gujarat in the above referred matters the President of CESTAT in exercise of powers vested under the provisions of law comprised in the Section 129-C(5) of the Customs Act, 1962 has returned similar such number of references under order dt. 10-8-2010. Copy of the said order is placed on record. Taking into consideration the question formulated for recording difference of opinion in Panchamahal Steel Ltd. case and applying the law laid down by the Apex court and followed by the Larger Bench, it is difficult to accept the contention that the issue involved in the matter stands referred to the Larger Bench in Panchamahal Steel Ltd. case. In fact the issue referred therein is merely to decide whether the said issue needs to ....
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....be no need for making a provision for such a person by way of a deeming fiction, as is sought to be done under the explanation, because, such a taxable service provider or a manufacturer can always utilize the Cenvat credit, as per the Rules. However, where a person is neither a provider of taxable service nor does he manufacture any final product, difficulty may arise in cases where input service is received by a person, who by virtue of his business has to pay service tax as a recipient, and who, but for the deeming fiction, would not be able to avail the benefit of Cenvat credit and the tax burden will rest on him, though he was not a consumer. Therefore, the explanation appears to have been enacted with a view to benefit a person who is liable to pay service tax as the recipient of taxable service, so that he can utilize the Cenvat credit for payment of service tax payable by him as recipient of any of the taxable services in respect of which a recipient is held to be liable to pay tax. However, this view would not be tenable, in view of the binding decision of the Division Bench in the case of India Cements Ltd. (supra), wherein a manufacturer was given benefit of the explanat....