2017 (12) TMI 232

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....ne to coal handling plants situated at ground level. For such transportation charges, the appellants paid service tax considering the said service as transportation of goods by road taxable under the category of Goods Transport Agency Service in terms of Section 65 (105) (zzp) of the Finance Act, 1994. During the period March 2011 to May 2014, they have discharged service tax for GTA services and availed the same as credit in terms of Cenvat Credit Rules, 2004. They have availed a total credit of Rs. 45,16,08,033/- during this period. The Revenue disputed the credit availablility to the appellant on the ground that the said services are not to be taxed under GTA services, rather the tax liability will arise only under the category of mining....

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....inal Authority who held that these services are rightly to be taxed as mining services and the appellants are not provider of such service. Hence, no service tax on GTA, that too on reverse charge basis, will arise in the present case. Accordingly, the amount taken as a credit is not an entitled amount in terms of Cenvat Credit Rules, 2004. 4. We have examined the contention of both the sides. We note the admitted facts are that the appellant did avail services for transport of goods. They did pay service tax on such services under GTA services. On these admitted fact, a denial of credit on the ground that the tax liability will arise on some other heading is not a tenable proposition. What is paid as a tax on an admitted input service i....

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.... pay service tax for the services the credit taken by the appellant is nothing but refund of tax erroneously paid by them. A reference was made to the decision of Hon'ble Supreme Court in Mahalaxmi Textile Ltd. - 1967 (66) I.T.R. 710 (S.C.) to hold that the Cenvat credit taken by the appellant is nothing but refund of service tax by them on the services on which they were not required to pay service tax. 6. It was observed as below :- "7.5 From the above discussion, it is very much clear that the insurance auxiliary services provided by the agents in the State of Jammu & Kashmir are not taxable. Therefore, the appellants are not liable to pay Service Tax for the said services of the insurance agents. In these terms, whatever cre....