2011 (5) TMI 79 - AT - Service Tax

Utilisation of Cenvat credit - GTA services - Appellant discharge the service tax on the GTA services received by them using the Cenvat credit available in their books of accounts - Revenue has contended that the respondents cannot pay the service tax from the Cenvat credit availed by them - As per Rule 3(4)(e) of the Cenvat Credit Rules, 2004 and para 2.4.2 of CBEC s Excise Manual of Supplementary Instructions shows that there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA services - Hence, the question of law posed in these appeals is answered in favour of the assessee and against the revenue.

Summary

Issues Involved: Confirmation of demand against the assessee for recovery service tax discharged by debiting the Cenvat credit account for GTA services utilized.

Analysis:

Issue 1: Confirmation of demand for service tax on GTA services:
The case involved the confirmation of demand against the assessee for utilizing Cenvat credit to discharge service tax on GTA services. The revenue authorities contended that the appellant could not use the Cenvat credit for this purpose, leading to a show cause notice for recovery of the amount paid during a specific period. The Adjudicating Authority dropped the proceedings based on precedent case laws cited by the appellant. However, the revisional authority, the Learned Commissioner, issued a show cause notice for review and concluded that the Cenvat credit could not be used for service tax on GTA services, considering the appellant as a deemed output service provider. The authority confirmed demands, penalties, and interest on the service tax amount.

Issue 2: Legal precedent and interpretation of law:
The appellant's counsel argued that the issue was settled by a Tribunal judgment in a similar case, Commissioner vs. Nahar Industrial Enterprises Ltd., where the Tribunal ruled in favor of the assessee. The counsel highlighted that the Hon'ble Punjab & Haryana High Court upheld the Tribunal's decision in an appeal filed by the revenue. The High Court's judgment was not stayed by the Supreme Court, indicating a legal precedent supporting the appellant's position.

Issue 3: Utilization of Cenvat credit for service tax liability:
The core issue revolved around whether the appellant could avail Cenvat credit to discharge service tax liability on GTA services and if they were obligated to pay as a recipient under Section 68 of the Finance Act, 1994. The Tribunal noted that the Hon'ble Punjab & Haryana High Court had previously ruled in favor of the assessee in a similar case. The High Court's decision emphasized that there was no legal impediment to using Cenvat credit for service tax on GTA services, as per the CBEC's Excise Manual and Cenvat Credit Rules, 2004. The High Court affirmed that the appellant was entitled to pay service tax from the Cenvat credit, rejecting the revenue's argument against it.

In conclusion, the Tribunal found that the issue was no longer res-integra due to the High Court's decision, which supported the appellant's right to utilize Cenvat credit for service tax on GTA services. The legal precedent established by the High Court's judgment favored the appellant's position, emphasizing their entitlement to pay service tax from Cenvat credit. The Tribunal dismissed the revenue's appeal, affirming the appellant's right to utilize Cenvat credit for service tax liability on GTA services, in line with the legal provisions and precedents cited.