9911796707
TMI Blog2014 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents pay service tax under the head "intellectual property service". This far the facts of the case are clear. Now there is some confusion in further facts. The third and fourth of the unnumbered paragraphs in the show-cause notice read as under: "And whereas the party pays service tax on the freight paid by them on the transportation of soap and detergents from the factory of M/s. Rohit Surfactants Pvt. Ltd. to the buyers' premises sold on account of the party, i.e., service tax is paid on transportation of goods from the factory of the franchisee to the premises of buyers of M/s. Ghari Industries Pvt. Ltd. The service tax so paid is distributed by the party's headquarters' to the factories of the party mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns filed by M/s. Rohit Industries Pvt. Ltd. can show Cenvat credit on service tax on freight paid by Ghari Industries Ltd. We notice from the show-cause notice that RUD-1 is the ST-3 returns for GTA service is filed by Rohit Surfactants Pvt Ltd. So it appears that freight was being paid by Rohit Surfactants Pvt. Ltd. For this reason we are not able to brush aside the contradiction in said paragraph of the showcause notice as a simple error. The third of the unnumbered paragraphs in the order-in-original reads as under: "The party pays service tax on the freight paid by them on the transportation of soap and detergents from the factory of M/s. Rohit Surfactants Pvt. Ltd. to the buyers premises sold on account of the party, i.e., service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intellectual property, it has been observed that the service tax credit amounting to Rs. 20,16,879 and education cess credit amounting to Rs. 40,338 has been utilized by them out of abovesaid distributed credit for payment of service tax on intellectual property right service. Department was of the view that in terms of definition of input service, GTA cannot be treated as input service for providing output service of intellectual property right. The transportation of goods from one destination to other cannot be treated as input service for the royalty received by the appellant for allowing the use their brand name 'Ghari'." During arguments in the Tribunal no issues were raised regarding facts and the arguments proceeded on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neligible credit, then its utilization is not proper. The argument canvassed by the respondent is a hyper technical argument. Further the eligibility for credit is a legal argument which can be taken at any stage of the proceedings. At the same time the respondent has to get an opportunity to argue this point and there has to be clear decision on the issue after statement of facts clearly. We are of the view that this matter involves a substantial issue to be decided. But the impugned orders of the lower authorities are not maintainable and the issue needs to be decided afresh stating all facts clearly without giving any room for doubts on facts in question and issues in question. So the impugned order is set aside and the matter is remitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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