9911796707
TMI Blog2011 (7) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) to decide afresh after affording an opportunity of hearing to the Respondent - C/141 of 2008 - - - Dated:- 5-7-2011 - Shri S.S. Kang, Shri Mathew John, JJ. Appeared for Appellant : Shri K.K. Jaiswal, SDR Per S.S. Kang : Heard ld. SDR. None appeared on behalf of the Respondent. The notice issued to the Respondent was received back with the postal remarks. In these circumstances, the Appeal is being taken up in the absence of the Respondent. 2. Revenue filed this Appeal against the impugned order passed by the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can be utilised for payment of excise duty/Service Tax as per Rule 3(4) of the Cenvat Credit Rules, 2004. Thus the credit taken by the Appellants in this case is in order and also the utilization of the same for payment of Service Tax on Business Auxiliary Service. Accordingly, I have no hesitation in holding that impugned order is not sustainable in the eyes of law and therefore the same is set aside." 3. The contention of the Revenue is as under :- The Respondent claim is that they are supposed to pay service tax on the commission paid to foreign based agents, in the category of Business Auxiliary Services, it should be treated as their Output Service. In terms of Cenvat Credit Rules, Output Service means any taxable service p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case Tribunal held that during the period prior to 19.4.2006 irrespective of whether a person provided taxable service and/or manufactured dutiable final products or did not provide any taxable service or manufactured any dutiable final products, he was required to pay the service tax on the GTA service received by them in cash, not through Cenvat credit. 5. We find that the issue raised by the Revenue requires re-consideration by the Commissioner (Appeals) afresh. Hence the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the Respondent. The Appeal is allowed by way of remand. (Dictated pronounced in open Court) - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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