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TMI Blog2015 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized Service Centre Service (Serving of motor Vehicles). During the period from April, 2007 to March, 2011, they had availed and utilized Cenvat credit of Rs. 11,68,494/-in respect of service tax paid on Goods Transport Agency (GTA) service where as freight paid on inward transportation of the vehicle from M/s. Maruti Suzuki India Ltd.. The appellant also availed Cenvat credit of Rs. 2,08,665/- on construction materials viz. Rolling Steel, Cement, Water-proofing Chemicals etc. The said goods being construction materials were neither inputs nor capital goods used for providing output service and therefore Cenvat credit of excise duty paid thereon is not admissible. Show cause notice was issued on 16/10/2012, wherein Cenvat Credit of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA service and inadmissible inputs viz. construction materials with intent to evade payment of service. 6. I impose penalty of Rs. 5,000/- under Rule 15A of CENVAT Credit Rules, 2004 for misrepresenting the facts vis-`-vis availment and utilization of Cenvat Credit in the ST-3 returns submitted by them." Aggrieved by the original order, the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal of the appellant. In original order and the impugned order grounds of denial of Cenvat credit is that (a) GTA service is not used in providing the services of authorized service centre, therefore it is not classified as input service (b) Service tax was paid by M/s. Maruti Suzuki therefore appellant is not entitle Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax to the M/s. Maruti Suzuki, therefore they are entitle for the Cenvat credit. In support he placed reliance on this Tribunal Judgment in case of Commissioner of Central Excise, Tirupathi Vs. Shariff Motors [2010(18) S.T.R. 64 (Tri. Bang)], where in identical issue, the Tribunal has allowed the credit. The said judgment has been upheld by the Hon'ble Andra Pradesh High Court as reported in [2015(38) S.T.R.J53 (A.P.)]. He also relied upon the judgment of this Tribunal in case of Badrika Motors (P) Ltd. Vs. Commissioner of C. Ex. & S.T. Bhopal [2014(S.T.R.) 349 (Tri. Del)]. As regard the service tax of Rs. 2,08,665/-, it is his submission that appellant is not contesting service tax liability in respect of building material and accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portation of new cars from M/s. Maruti Suzuki to the appellant. The contention of the Revenue is that GTA is in respect of purchase of car which is sold as such and authorized station service has no relation with this transportation service, therefore the GTA in respect of present service is not input service for providing out service i.e. authorized station service. The identical issue has been dealt by this Tribunal in case of Shariff Motors (supra) in which it was held as under: 6. We have gone through the records of the case very carefully. The Respondents are paying service tax on GTA services on the service tax paid on transportation of the vehicles to their show room. They are also providers of output service. This output service i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, dated 12-3-2009 and sought to be admitted on the following suggested question of law : "Whether CESTAT is correct in holding that the GTA service utilized by the assessee as recipient, is input service for providing the output service i.e., "authorized service station"?" The aforesaid question amply suggests that there is no element of law involved on the factual aspect. The learned Tribunal has dealt with this aspect in the manner as follows : "In our view, unless the vehicles are received and sold, there would not be any servicing of the same. Moreover, the definition of the input service is broad enough to cover the input service availed by the Respondents and also the output service rendered by them". We are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench and it was upheld by the Hon'ble Andra Pradesh High Court therefore Sree Siva Sankar Automobiles(supra) is not applicable. Following the ratio of the above judgments, I hold that appellant is entitle for Cenvat credit in respect of GTA as input service. Therefore demand of Rs. 11,68,494/- is set aside. As regard credit of Rs. 2,08,665/- availed by the appellant on building material, even on merit it is not admissible. Appellant admittedly paid amount and not contesting the same, therefore the demand of Rs. 2,08,665/- is maintained. I do not find any reason in default of such payment of service tax by the appellant, therefore, I am of the view that penalty of equal amount imposed and upheld by the lower authority is maintainable. App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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