2008 (3) TMI 652

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....ant Commissioner of Central Excise, Hubli Division. The appeal No. ST/350/2006 arises from the Orderin Appeal No. 285/2006 CE dated September 20, 2006 setting aside the Order-in Original No. 27 of 2006 dated June 28, 2006 passed by the same Assistant Commissioner of Central Excise. The findings in both the orderin-appeals are almost identical and hence the findings recorded in the Order-in-Appeal No. 284 of 2006 CE dated September 20, 2006 are reproduced hereinbelow:- "I have gone through the record of this case and carefully considered the submissions made by the appellants. The dispute relates to use of service tax input credit accumulated by the appellant towards discharge of service tax liability on goods transport service availed....

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....of by virtue of their entitlement to use any input credit availed, whether on excisable inputs or taxable input services, earned in terms of rule 2(l) read with rule 3(1) and 3(4) for making payment of duty on any taxable service or excisable goods on which they are liable to pay. I am accordingly of the view that the appellant has not committed any irregularity by discharging service tax liability on goods transport service received by them by treating the same as output service using accumulated credit of service tax paid inasmuch as use of such credit is open to them for discharging duty liability on any dutiable goods or taxable services. There is no one to one correlation between credit availed and credit utilised. . . . therefore f....

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....erms of rule 3(4)(e) of the Cenvat Credit Rules, Cenvat credit may be utilised for payment of service tax on any output service, the appellant is not entitled to utilise the Cenvat credit for payment. 'Output service' is defined in rule 2(p) of the Cenvat Credit Rules, 2004. The same is reproduced below: '"Output service" means any taxable service provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions "provider" and "provided" shall be construed accordingly.' The Explanation (omitted) reads as under: 'Explanation.-For the removal of doubts it is hereby clarified that if a person liable for paying service tax does ....