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TMI Blog2012 (10) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue u/s 11D. appellant have already paid service tax from their Modvat credit, the deposit of the service tax collected from the buyers would amount to double payment. proceedings are for confirmation of demand in terms of section 73A of the Finance Act which relates to the tax collected by an assessee from the buyers, which is not required to be collected. However, the appellant having already paid such collected amount to the Revenue they cannot be made to deposit the same again with the Revenue - Impugned order of CIT(A) is set aside and the appeal allowed with consequential relief to the appellant. - ST/125-126 OF 2011-(SM) - 988-989 OF 2012-SM (BR) - Dated:- 18-7-2012 - MS. ARCHANA WADHWA, JJ. Mayank Garg for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing all these activities for themselves within the factory premises for clearance of fly ash. As the fly ash has been cleared at factory gate and the said system of the appellant mere enables them to deliver the said goods at factory gate, they are providing service to themselves. Hence, the appellant cannot be termed as service provider. Therefore, they are not liable to pay service tax on the loading/lifting of fly ash at their unit. 2. As per Rule 2(p) of Cenvat Credit Rules "output service" means any taxable service, excluding the taxable service referred to in sub-clause (zzp) of clause 105 of section 65 of the Finance Act, provided by the provider of taxable service, to a customer, client, subscriber, policyholder or any other per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the appellant. Appeal against the above order of the adjudicating authority did not succeed before Commissioner (Appeals), hence the present appeal. 3. After hearing both sides, I find that the short issue involved in the present appeal is as to whether the amount of service tax collected by the appellant from their customers is required to be deposited with the department in terms of provisions of section 73A of Finance Act, 1994 on the ground that the appellant was not required to pay service tax, which they have paid by using the Cenvat credit. Irrespective of the fact that whether the appellant was required to pay service tax or not, the facts remain that service tax stands paid by them through Cenvat credit. Can it be said in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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