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2016 (11) TMI 1107 - AT - Service TaxWhether the appellant are liable to pay service tax on GTA service from cash or from their Cenvat Credit account or otherwise for the period prior to 1.3.2008? - Held that - From the Explanation, which was inserted vide Notification No. 28/2012-CE(NT) dt. 20.6.2012 (w.e.f.1.7.2012), the utilization of Cenvat Credit has been barred for payment of service tax by the service recipient where the service tax is payable under reverse charge mechanism. This bar was not existing at the relevant time that is during the period October, 2007 to February 2007 involved in the present case. In view of the above, the impugned order is not sustainable, hence the same is set aside. The appeal is allowed.
Issues Involved:
Whether the appellant is liable to pay service tax on GTA service from cash or Cenvat Credit account for the period prior to 1.3.2008. Analysis: Issue 1: Liability to pay service tax on GTA service The case revolved around determining whether the appellant was obligated to pay service tax on GTA service from cash or their Cenvat Credit account for the period before 1.3.2008. The Ld. A.R. representing the Revenue argued that after the omission of the Explanation to Rule 2(b) of Cenvat Credit Rules, the GTA service did not qualify as an output service for the appellant. Consequently, utilizing Cenvat Credit for paying GTA service, which was not considered an output service, was deemed impermissible. The Ld. A.R. supported this stance by citing specific judgments, including Alstom Projects India Ltd. Vs. Commissioner of C.Ex.Coimbatore and Commissioner of Central Excise Raigad Vs. Ecnjay Forging Pvt. Ltd. Issue 2: Interpretation of Rule 2(r) of Cenvat Credit Rules The Member (Judicial) carefully examined the submissions and records to determine the appellant's entitlement to pay service tax on GTA service using their Cenvat Credit. Despite the omission of the Explanation in Rule 2(p) of Cenvat Credit Rules, it was highlighted that Rule 2(r) remained unchanged. Rule 2(r) defined "provider of taxable service" to include a person liable for paying service tax. This definition implied that the appellant, as a recipient of GTA service liable for paying service tax, was considered a provider of taxable service. Therefore, the appellant had the right to pay the service tax either in cash or by utilizing the Cenvat Credit from their account, as clarified by relevant legal precedents such as the judgment of the Hon'ble Punjab and Haryana High Court in Commissioner of Central Excise Chandigarh Vs. Nahar Industrial Enterprises Ltd. and the Division Bench of the Tribunal in National Engineering Industries Ltd. Vs. Commissioner of Central Excise, Jaipur-I. Issue 3: Relevance of Rule 3(4) of Cenvat Credit Rules Additionally, the Explanation in Rule 3(4) of Cenvat Credit Rules was examined. This Explanation, inserted via Notification No. 28/2012-CE(NT) dated 20.6.2012, specified that Cenvat credit could not be utilized for paying service tax in cases where the service recipient was liable to pay tax under the reverse charge mechanism. However, during the relevant period of October 2007 to February 2008 in the present case, this restriction did not apply. Therefore, it was concluded that the impugned order was unsustainable, leading to its setting aside and allowing the appeal in favor of the appellant. This detailed analysis of the legal judgment showcases the thorough consideration of the issues involved and the application of relevant legal provisions and precedents to arrive at a well-reasoned decision.
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