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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 ..... e appellants are engaged in the manufacture of filament yarn. During the period from October, 2006 to September, 2007, the appellants availed GTA services in respect of transport of inputs to their factory and for payment of service tax as recipient of GTA services, they utilized the Cenvat credit to the extent of Rs. 6,53,601/-. The department is of the view that since the appellants have discharged service tax liability in respect of GTA service received by them as recipient; that GTA service is not their input service and therefore the service tax amount should have been paid in cash and not by utilizing Cenvat credit, which can be utilized only for payment of central excise duty on finished manufactured products or payment of service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal order in the case of ITC Ltd. v. CCE, Guntur reported in 2009 (14) S.T.R. 524 and also in the case of Pragati Papers Industries Ltd. v. C.C.E., Chandigarh reported in 2009 (14) S.T.R. 121 has held that the definition of "output service", also covered the GTA service received by a manufacturer in respect of which service tax is required to be paid by the manufacturer as service recipient as per provisions of law and that in view of this, the appellants have a strong prima facie case in their favour and hence the requirement of pre-deposit of service tax and interest for the purpose of hearing this appeal, may be waived. 5. Shri R.K. Verma, the learned DR, pleaded that from the definition of "output service" during the period of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit of service tax demand and interest. 6. I have carefully considered the submissions from both sides and perused the records. The appellant are manufacturers and for manufacture of finished goods, certain raw materials were being received for which GTA service was availed. As per provisions of law, the appellant were required to pay service tax on the GTA service received by them as service recipient. The appellants, however, discharged service tax liability in respect of GTA service received by them by utilizing Cenvat credit while according to the department Cenvat credit could be utilized only for payment of duty on finished products or service tax on the output service and that since GTA service received by them is not their outpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the service provided by a Goods Transport Agent (GTA) the consignee has been made liable to pay service tax, that service received by the consignee does not become their 'output service'. Therefore, the service tax payable by the consignor or consignee on transportation of goods by road cannot be paid through Cenvat credit by such consignor or consignee. The above clarification by the Board has to be treated as contemporaneous exposition of Rule 2(p). Moreover this clarification is in accordance with settled law that legal fiction can be applied only for the specific purpose for which it has been made not for other purpose. In view of this, even though the issue has been referred to Larger Bench in my view this is not a case for total wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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