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TMI Blog2009 (7) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... . ORDER This is an appeal received from M/s. Menon Pistons Ltd., Kolhapur (hereinafter referred as the appellant) against Order-In-Original No. KOP-I/STC/ADJ/15/2008-09, dated 27-2-2009. The brief issue involved in the appeal is that the appellant, who is registered for payment of Service tax on transportation of goods by road, in terms of Notification No. 35/2004-S.T., dated 3-12-2004, availed services from M/s. Gati Ltd., M/s. Speedage Transports M/s. NECC Logistics Ltd., all three registered under 'Courier Agency service', M/s. Rahul Cargo, registered under 'Cargo Handling Service' and M/s. Ghatge Patil Transports Ltd., registered under 'Goods Transport Agency'; that the SCN dated 20-6-2007 was issued to the appellant alleging that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the their services as 'courier agency service' or 'cargo handling service' and they have also charged the Service tax under 'courier agency service'/'cargo handling service' and paid the Service tax to the Government and the department has accepted the same and therefore, it is well settled that the classification of inputs/input services cannot be changed at the receiver's end the appellant's end) as laid down by the Apex Court in the case of Sarvesh Refractories (P) Ltd. v. CCE - 2007 (218) E.L.T. 488 (S.C.) and Tribunal's decision in the case of Indusil Industries Ltd. v. CCE - 2008 (222) E.L.T. 461; (iv) that M/s. Ghatge Patil Transports Ltd. is also falling in Kolhapur Division and the practice of charging Service tax on freight recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on Board's Circular No. 005-01/23-8-2008 of Master Circular No. 96/7/2007-S.T., dated 23-8-2007. Besides he has also relied upon the following decisions - (a) Sarvesh Refractories (P) Ltd. v. CCE & C - 2007 (218) E.L.T. 488 (S.C.), (b) Navyug Alloys Pvt. Ltd. v. CCE & C, Vadodara - 2008 (89) RLT 776 (CESTAT Ahmd.) (c) Invincible Security Services v. CCE, Noida - 2009 (13) S.T.R. 185 (Tri.-Delhi) According to the above decisions, once the Service tax is paid by the service provider, there is no need to demand any further Service tax from the service receiver. 4. I have gone through the case records including record of PH and citations relied upon by the appellant/advocate, carefully. After dispensing with pre-deposit, I take the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court decision in the case of M/s. Sarvesh Refractories (P) Ltd. v. CCE&C supra; (iii) that the decision of Delhi High Court in the case of Invincible Security Services v. CCE, Noida and Navyug Alloys Pvt. Ltd. v. CCE&C, Vadodara supra, also squarely cover the issue on hand. 4.1 As contended by the appellant, there is no dispute with regard to the payment of Service tax paid by the service providers. In fact, the Service tax was collected in their bills from the appellant only. In short, there is only a 'technical error' i.e. instead of Service tax being paid by the appellant, the same was paid by the service providers. In other words, the Service tax being the indirect tax, the same has to be collected from the appellant only (consume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended by the appellant, the practice of collecting the Service tax from the receiver and paying the same into the Government Account is known to the department and hence again asking the appellant to pay Service tax in terms of Notification No. 35/2004 is also not correct. Hence, on all the above grounds, directing the appellant to pay Service tax once again which is already discharged by the service providers, is not sustainable. Once the appellant is not liable to pay Service tax, the question of paying interest and penalty also do not arise.
5. In view of the facts and circumstances, I allow the appeal by setting aside the impugned OIO passed by the Assistant Commissioner, Central Excise, Kolhapur I Division. X X X X Extracts X X X X X X X X Extracts X X X X
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