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TMI Blog2009 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... al waiver of pre-deposit. Appellant directed to pay Rs. 4 lakh as pre-deposit. Pre-deposit of balance amount waived recovery stayed. - ST/856/2009 - 9/2010-SM(BR)(PB), - Dated:- 21-12-2009 - Shri Rakesh Kumar, Member (T) Shri A.P. Gupta, Advocate, for the Appellant. Shri R.K. Verma, JDR, for the Respondent. [Order]. - This is an application for waiver from the requirement of pre-deposit of service tax demand of Rs. 6,53,601/- alongwith interest and equal amount of penalty upheld by the Commissioner (Appeals) vide impugned Order-in-Appeal No. 193-CE/GZB/2009 dated 31-7-2009. 2. The facts giving rise to this appeal and the stay application are, in brief, as under : 2.1 The appellants are engaged in the manufacture of fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as output service, that therefore, service tax on GTA service received by them was rightly paid by utilizing Cenvat credit; that provisions of Rule 2(p) of Cenvat Credit Rules, 2004 regarding definition of "output service" and "output service providers" were amended only in March, 2008 by excluding the taxable service covered under Section 65(105)(zzp), which indicates that prior to this amendment with effect from 1-3-2008, an assessee receiving GTA service and paying service tax on the same as service receiver would be treated as service provider also and the GTA service received would be treated as output service; that the Tribunal in a series of judgments referred to in para 5 of the Tribunal order in the case of ITC Ltd. v. CCE, Guntu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a person liable to pay service tax, if he does not provide any taxable service or does not manufacturer final products, the service for which he is liable to pay service tax shall be deemed to be as output service, that even this explanation though it was no longer there during the period of dispute, was applicable only to a person who is not a service provider or manufacturer and that the Tribunal in the case of Panchmahal Steel Ltd. v. C.C.E., Vadodara-II - 2008 (12) S.T.R. 447 noticing contrary decision on this issue has referred this matter to a Larger Bench. Shri Verma, therefore pleaded that in view of this position, this is not the case for waiver from the requirement of pre-deposit of service tax demand and interest. 6. I have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Cenvat Credit Rules, 'output service' means any taxable service provided by the provider of taxable service to be service receiver; that definition of 'provider of taxable service' includes a person liable to pay service tax; that reading the two definitions in conjunction, it is clear that, to form 'output service', taxable service has to be actually provided by the provider of taxable service and that even if due to a legal fiction, a consignor or a consignee qualifies to fall under the definition of 'a person liable to pay service tax '(and consequently a provider of taxable service), it cannot be said that he has actually provided any taxable service. Just because in respect of the service provided by a Goods Transport Agent ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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