TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 878
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....7/- along with interest and penalty for the period April 2006 to January 2007. The adjudicating authority confirmed the demand of service tax of Rs.10,27,257/- along with interest under Section 73 (1) of the Finance Act, 1994 and disallowed the cenvat credit of Rs.10,27,257/- under Rule 14 of the CCR 2007 utilized towards the payment of tax and imposed penalty. Commissioner (Appeals) modified the adjudication order in so far as the demand of tax was restricted for the period from 19.4.2006 to January 2007 along with interest. Penalty was waived by invoking Section 80 of the Finance Act, 1994. The assessee filed appeal before the Tribunal against the demand of tax along with interest for the period from 19.4.2006 to Jan'07. Revenue also filed appeal against setting aside the demand of tax prior to 19.4.2006 and waiver of penalty. 2. The Learned Advocate on behalf of the assessee submits that the Commissioner (Appeals) erroneously proceeded on the basis that the Explanation to Rule 2(p) of Service Tax Rules 2004 was deleted vide Notification No.8/2006-CE (NT) dt. 19.4.2006 and thereafter the assessee is not eligible to avail cenvat credit for discharging the tax liability on GTA....
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....ipient of the GTA service. By virtue of Rule 2(1) (d) (iv) of Service Tax Rules, 1994 they have been deemed as 'service provider' for the purpose of discharging service tax. So, they are not actual service provider and hence GTA service is not an 'output service' within the definition of Rule 2(p) of CCR. He submits that the Explanation to Rule 2(p) of the Rules 2004 is a deeming provision in respect of payment of service tax. It is settled law that legal fiction created for a particular purpose cannot be extended to other areas. He submits that they are the manufacturer of excisable goods and therefore they cannot be deemed to be an output service provider. In this context, he relied upon the decision of the Hon'ble Supreme Court in the case of Saraswati Sugar Mills Vs CCE Delhi - 2011 (270) ELT 465 (SC) and also Hon'ble Madras High Court's decision in the case of BAPL Industries Ltd. Vs UOI - 2002 (211) ELT 23 (Mad.) 4.1 With regard to appeal filed by assessee, Ld. AR submits that the Tribunal in the case of Gimatex Industries Pvt. Ltd. Vs CCE Nagpur - 2012 (25) STR 456 (Tri.-Mum.) has held that payment of service tax on GTA through cenvat credit acco....
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....ccordingly;" d) Rule (3) (4) of Cenvat Credit Rules, 2004 is as under :- Rule 3. CENVAT Credit . - (1) xxx xxx xxx (4) The CENVAT credit may be utilised for payment of (a) xxx xxx xxx xxx xxx (e) service tax on any output service" e) Section 68 (2) of Finance Act, 1994 provides payment of service tax as under :- " (2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service." f) Rule 2 (1) (d) (v) of Service Tax Rules, 1994 defines "person liable for paying service tax" means as under :- " (v) in relation to taxable service provided by a goods transport agency, where the consignor or consignee of goods is, - (a) any factory registered under or governed by the Factories....
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.... Rules, 2004 and therefore, they are eligible to utilize cenvat credit for payment of service tax on GTA service prior to 1.3.2008. The Ld. Advocate strongly relied upon the decision of the Division Bench of the Tribunal in the case of Shree Rajasthan Syntex Ltd. Vs CCE Jaipur 2011 (24) STR 617 (Tri.-Del.) . In that case, the Tribunal distinguished the decision in the case of ITC Ltd. (supra) and observed that the assessee is eligible to utilize cenvat credit for payment of service tax on GTA service prior to issue of notification No.10/08-CE (NT) dt. 1.3.2008. The relevant portion of the said decision is reproduced below :- "3.?After hearing the learned DR, we find that the issue is no more res integra and stands settled by various decisions of the Tribunal, which also stands confirmed by the Honble High Court of Punjab and Haryana. The Tribunal in the case of Commissioner of Central Excise, Nagpur v. Visaka Industries Ltd. reported in [2007 (8) S.T.R. 231 (Tri. - Mum.)] has held that the assessee, a manufacturing unit paying Service tax on goods transport services, fall within the definition of 'provider of taxa....
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.... of duty on the GTA services so received by them. 6. As discussed above, for the period prior to issue of Notification 10/2008-C.E. (N.T.), dated 1-3-2008 the issue stands finally decided in favour of the appellant by various judgments referred supra and ITC decision not being relevant to the facts of the case, we by following the earlier precedent decisions on the issue involved, set aside the impugned orders and allow both the appeals with consequential relief to the appellants." 9. Similar view was taken by the Division Bench of the Tribunal in the case of M/s.National Engineering Inds. Ltd. Vs CCE Jaipur - 2011 (2) TMI 930 - CESTAT, Delhi. On the identical issue, the Single Member of the Tribunal in the case of CCE & S.T Hyderabad Vs Aster Teleservices (P) Ltd. - 2013 (29) STR 475 (Tri.-Bang.) rejected the appeal filed by Revenue. The Division Bench of the Tribunal in the case of CCE Indore Vs Spendex Industries Ltd. - 2013 (31) STR 472 (Tri.-Del.) on the identical issue for the period April 2006 to September 2006 held as under :- "6. After hearing both the sides, we find that the Tribunal in the ....