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TMI Blog2017 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... s & Steels [2010 (9) TMI 815 - CESTAT, BANGALORE] the appellants are entitled to pay service tax through Cenvat Credit account for the period prior to 19.4.2006 - the appellant cannot utilise cenvat credit account for payment on GTA Service for procurement of inputs - demand upheld. Imposition of penalty u/s 76 of FA, 1994 - Held that: - the N/N. 10/08 dated 01.03.2008 came into effect from 01.04.2008, in that circumstances, benefit of Section 80 of the FA, 1994 is available to the appellant as whatever the service tax has been paid, therefore, the appellant is entitled for cenvat credit - penalty u/s 76 of the FA, 1994 is not imposable on the appellant. Appeal disposed off - decided partly in favor of appellants. - ST/2310/2012 - A/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in terms of Notification No.10/2008 dated 01.03.2008, the appellant can utilise cenvat credit account for payment on GTA Service for procurement of inputs or not 5. The said issue came up before this Tribunal in the case of UNI Deritend Ltd. reported in 2012 (25) STR 475 (Tri. Mumbai) wherein this Tribunal analyzed the issue and observed as under: 9. As regards the period beyond 18-4-2006, the Explanation to Rule 2(p) was withdrawn on 19-4-2006. It is contention of the appellant that they should be treated as service provider in view of the legal provisions imposing the burden of paying the service tax till the law was further amended on 1-3-2008. I find that all the decisions are in favour of the appellants for holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider, was available. However, w.e.f. the said date the Explanation providing such deeming fiction of law was deleted. As such, the appellant, who has actually received the GTA services, cannot be considered to be a service provider. 5. However, no financial hardship stands pleaded by the appellant. We, accordingly, direct the applicant/appellant to deposit 50% of the duty involved within a period of 8 weeks from today, subject to which, the pre-deposit of balance amount of duty and penalty, if any, would get dispensed with and its recovery also stayed during the pendency of the appeal. Matter to come up for reporting compliance on 19-12-2011. Further, in the case of M/s Royal Enfield reported in 2015 (37) STR 826 (Tri. Chenna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules, 2004 which includes a person liable for paying Service Tax. As such, it was held that payment of Service Tax in respect of services rendered by Goods Transport Agency through Cenvat credit was appropriate. Similarly, in the case of CCE, Chandigarh v. Nahar Industries Enterprises Ltd. reported in [2007 (7) S.T.R. 26 (Tri. - Del.)] it was held that Cenvat credit can be utilised towards payment of Service Tax in respect of services received from Goods Transport Agency inasmuch as by a deemed fiction of law service recipient is held to be output service provider. The said order of the Hon ble Tribunal stands confirmed by the Hon ble Punjab and Haryana High Court as reported in 2011 (104) RLTONLINE 3 (P H) when the appeal file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to avail any Cenvat credit and as such there can be no account of any credit for utilization towards payment of duty on the GTA services so received by them. 6. As discussed above, for the period prior to issue of Notification 10/2008-C.E. (N.T.), dated 1-3-2008 the issue stands finally decided in favour of the appellant by various judgments referred supra and ITC decision not being relevant to the facts of the case, we by following the earlier precedent decisions on the issue involved, set aside the impugned orders and allow both the appeals with consequential relief to the appellants. 9. Similar view was taken by the Division Bench of the Tribunal in the case of M/s. National Engineering Inds. Ltd. v. CCE, Jaip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lisable for payment of tax on GTA Services. Demand is upheld, however, considering the nature of dispute, penalty for period 19.04.2006 to 28.02.2008 is not justified. 6. I hold that the appellant cannot utilise cenvat credit account for payment on GTA Service for procurement of inputs. In these terms, I uphold the demand of service tax along with interest. 7. Further, I find that penalty under Section 76 of the Finance Act, 1994 has been imposed on the appellant. Considering the fact that the Notification No. 10/08 dated 01.03.2008 came into effect from 01.04.2008, in that circumstances, benefit of Section 80 of the Finance Act, 1994 is available to the appellant as whatever the service tax has been paid, therefore, the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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