2009 (1) TMI 210 - AT - Service Tax

Cenvat Credit utilization of cenvat credit for payment of service tax on GTA service - held that assessee was not entitled to the benefit of explanation to Rule 2 (p) of the Cenvat Credit Rules, 2004 and consequently the GTA services on which they paid service tax was not to be deemed to be output service, with the result that payment of service tax on such service should have been made in cash and not by way of utilization of Cenvat Credit.

Summary

Issues:
Whether the respondent was entitled to utilize CENVAT credit for payment of service tax on Goods Transport Agency Service availed for outward transportation of finished goods.

Analysis:
The appeal was filed by the Department as the respondent did not represent themselves despite notice. The key question in this case was whether the respondent could use CENVAT credit for paying service tax on the GTA service they availed for transporting finished goods. It was established that the respondent was liable to pay service tax on GTA as per the Service Tax Rules, 1994. The respondent was not a service provider but was availing services from the goods transport agency. The explanation to Rule 2 (p) of the Cenvat Credit Rules, 2004 clarified that if a person liable for paying service tax did not provide any taxable service or manufacture final products, the service for which they were liable to pay service tax should be deemed as output service. The Department argued that since the respondent was a manufacturer of final products, they were not eligible for this explanation, and thus, the GTA service should not be deemed as output service.

The lower appellate authority did not carefully examine this aspect, leading to the conclusion that the respondent was not entitled to the benefit of the explanation to Rule 2 (p) of the Cenvat Credit Rules, 2004. Consequently, the GTA services on which they paid service tax should not be considered output service. Therefore, the payment of service tax on such services should have been made in cash and not through the utilization of CENVAT credit. The legal provisions were clear on this matter, leaving no room for opposing the grounds raised in the appeal. As a result, the impugned order was set aside, and the appeal of the Revenue was allowed.