9911796707
TMI Blog2017 (5) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... interest upheld - penalty set aside - decided partly in favor of appellant. - ST/11/2009 - FO/75729/2017 - Dated:- 24-4-2017 - Shri P. K. Choudhary, Judicial Member Sri S.P. Majumdar, Advocate For the Appellant Sri A.Roy, Supdt.(A.R.) For the Respondent ORDER Per: Shri P. K. Choudhary Briefly stated the facts of the case are that the appellants are engaged in the production and export of Chrome Concentrate. During the year 2005, they paid Service Tax on GTA service and utilised Cenvat Credit. According to the Revenue, the appellant is not entitled to utilise the Cenvat Credit on input service namely GTA service. The Adjudicating authority confirmed the demand of Service Tax alongwith interest and imposed pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by virtue of being the person liable for paying service tax under Rule 2(q) of Cenvat Credit Rules, 2004 read with Rule 2(1)(d) of Service Tax Rules, 1994 - (a) Those who provide a taxable service/services or manufacture dutiable final products or provide taxable service/services as well as manufacture dutiable final products. (b) Those who do not provide any taxable service or manufacture any dutiable final products - the category to which the appellant belong. 8.1 During period prior to 19-4-2006 by virtue of the legal fiction of explanation to Rule 2(p), for a person falling in category (b) above, who is liable to pay service tax as service recipient in respect of some taxable service received by him, the service received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re liable to pay tax under Rule 2(1)(d) of Service Tax Rules, 1994, is deemed to be their output service, they could not take service tax credit in respect of other taxable services received or input duty credit in respect of duty paid goods received, as they are not manufacturing any dutiable final product or providing any taxable service. In terms of provisions of Rule 3(1) of the Cenvat credit Rules, 2004, credit of service tax paid on input services received and/or of Central Excise duty paid on inputs/capital goods received can be taken only if the input services received and inputs and capital goods received are used in or in relation to manufacture of final products or providing of taxable output services. For the persons of category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd settled, convincing. 9. In view of the above, the service tax on GTA service received by them by the appellant which was not paid in cash but was paid through Cenvat credit account the same would be recoverable from them. From the above, it is clear that the issue relating to payment of service tax on GTA service through cash was in dispute, the penalty is not sustainable and is liable to be set aside. Therefore, the order-in-appeal dropping the demand along with interest is set aside and Revenues appeal is allowed to the above extent. The appeal stands disposed of as above. In the present case the dispute relates to the period January, 2005 to August, 2005. The Adjudicating Authority confirmed the demand of Cenvat Credit along ..... X X X X Extracts X X X X X X X X Extracts X X X X
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