2011 (6) TMI 362

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....g disposed off by this common order. 4. The issue involved in this is case is that the appellants herein had availed cenvat credit of Service Tax paid on the GTA services during the period from January 2005 to September 2005. After availing such credit, the appellants utilized the said credit for discharge of Service Tax liability on the GTA services for the subsequent period. It is the case of the Revenue in the show cause notice that the assessee could not have availed the cenvat credit on the Service Tax paid on the GTA services, as while rendering the services they were neither the manufacturer or there are provider of output service. Revenue's view has been upheld by the Adjudicating Authority holding that the appellants by virtue of ....

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....vices 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. Th....

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....rovided, ordinarily it would not fall under the definition of 'output service'. However, the explanation created a deeming fiction by providing that, if a person liable for paying service tax does not provide any taxable service or does not manufacture final product, the service for which he is liable to pay service tax shall be deemed to be the output service. The recipient of service from Goods Transport Operator or Agent having become liable to pay service tax, would be entitled to take the benefit of the deemed fiction, if he does not provide any taxable service or does not manufacture final product on which he could have utilized Cenvat credit. Where a person provides any taxable service or manufactures final product, he can utilize th....

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....d not be tenable, in view of the binding decision of the Division Bench in the case or India Cements Ltd. (supra), wherein a manufacturer was given benefit of the explanation to Rule 2 (p). Therefore, respectfully following the ratio of the decision of the Division Bench of this Tribunal in the case of India Cements Ltd. (supra), I find no warrant for interference with the impugned order. The appeal of the Revenue is, therefore, dismissed."     15. Similar view was taken earlier in CCE, Chandigarh v. Nahar Industrial Enterprises Ltd. reported in 2007 (7) S.T.R. 26  which was followed in RRD Tex Pvt. Ltd. v. CCE, Salem reported in 2007 (8) S.T.R. 186, Pallipalayam Spinners Pvt. Ltd. v. CCE, Salem reported n 2008 (9) S.T.....