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TMI Blog2016 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax on GTA in respect of transportation of goods from their Allahabad unit to their depot at Kalher and availed the Cenvat Credit of the said service tax payment in the appellants unit at Bhiwandi. The adjudicating authority and Ld. Commissioner (Appeals) denied Cenvat Credit on the ground that as per Rule 2(l) of Cenvat Credit Rules 2004, the credit can be availed only on the input service which is used by the manufacturer in or in relation to the manufacture of final products and clearance thereof upto place of removal. In the present case the services of GTA was provided for the transport of goods between the Allahabad unit and their Kalhar Depot, therefore the said service was not received and used by the appellant. Aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit can be allowed only in respect of input service which is defined under Rule 2(l) of Cenvat Credit Rules, 2004. As per the definition of "input service" the foremost condition is that the service should exist and the same should be used in or in relation to the manufacture of final products or for providing output service. In the present case, firstly the appellant have paid the service tax on the GTA service which was undertaken between their Allahabad unit and Kalher depot. The service of GTA was not received by the appellant, therefore there is neither input service exists nor there is a use of such service. In absence of fulfillment of ingredients provided in the definition of input service, the appellant is not entitled for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT v. Mahalakshmi Textile Mills Ltd. - 1967 (66) ITR 710 (SC) wherein the Hon'ble Supreme Court held that - "5. By the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the departmental authorities is canvassed. Under sub-s. (4) of s. 33 of the Indian IT Act, 1922, the Tribunal is competent to pass such orders on the appeal as it thinks fit. There is nothing in the IT Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal : If for reasons recorded by the departmental authorities in rejecting a contention rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taxable and as such, there is no liability on the part of the appellant to pay the Service Tax. As a result, the credit of Service Tax availed by them is not admissible to them. 5. I agree with the learned Advocate that it is the credit of Service Tax paid which is available to the assessee and not credit of Service Tax payable. Admittedly the appellants have paid the Service Tax on the GTA services availed during December, 2004 though they were not liable to pay the same. Having paid the Service Tax, they are entitled to the credit of the same. It is to be noted that no objection was raised by the Revenue at the time of payment of Service Tax by the appellant". (iii) Sterlite Industries (I) Ltd. (supra) has held as under- "2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exchequer by merely taking credit of the amount which in the first place not recoverable from them. Hence, ends of justice would be met if the demand is set aside along with the demand of interest and penalty. The view taken by me above finds support from the decision of the Hon'ble High Court of Punjab and Haryana in the case of M/s. V.G. Steel Industry v. C.C.E., 2011-TIOL-338-HC-P&H = 2011 (271) E.L.T. 508 (P & H), where it has been held that when duty was paid in excess of what was payable, CENVAT credit cannot be denied unless the excess duty paid has been refunded." From the above judgments, it is clear that even if the service tax is not required to be paid and if the assessee pay the service tax, the same can be taken as Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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