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TMI Blog2017 (11) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on their activity of transportation even though there was no requirement to do so. By paying service tax, the appellant has utilized the entire Cenvat Credit and as such it can be concluded that the credit paid by the assessee stands reversed. In such a scenario, confirmation of the same for the second time is neither justified nor warranted. There is no warrant for confirmation of Cenvat Credit availed and already utilized by the appellant for payment of service tax on their activity of transportation of gas through pipelines - appeal allowed - decided in favor of appellant. - ST/70068/2015 & 70157/2016-ST[SM] - A/71542-71543/2017-SM[BR] - Dated:- 17-11-2017 - Mrs. Archana Wadhwa, Member (Judicial) Shri S.C. Kamra (Adv) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on activity as a taxable activity. 4. As a result of audit conducted in the appellant's factory in the year 2012 raised an objection that in as much as the appellant was only purchasing and selling the gas without any activity at their end, they are not entitled to avail the Cenvat Credit of service tax paid by M/s Gail India Ltd. As a result of the said audit objection, proceeding was initiated against the appellant by way of issuance of show cause notice on 07.03.2013 raising demand of duty of ₹ 34,72,478/- for the period 2009-10 and 2010-11, by invoking the longer period of limitation. The said show cause notice culminated into an order passed by the original Adjudicating Authority, who confirmed the demand alongwith the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further activity. He further clarifies that though the transportation charges were being shown separately in their invoices but the fact of the matter is that the sale actually took place at the customer's premises and such transportation charges were a part of the value of the gas. As such there was no requirement on their part to pay service tax on the said transportation activity. He also relied upon a circular issued by the Central Board of Direct Taxes being Circular No.9/2012 dated 17.10.2012 which clarifies the following effect. It is clarified that in case the Owner/Seller of the gas sells as well as transports the gas to the purchaser till the point of delivery, where the ownership of gas to the purchaser is simultaneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision that the availment of Cenvat Credit availed by assessee cannot be demanded again from him on the ground that the activity undertaken by him does not amount to manufacturer, when credit stands utilized by him for payment of duty on their final product. Though the said decision is in the context of Central Excise but the ratio of the same would equally apply to the service tax matters. In view of the foregoing, I find that there is no warrant for confirmation of Cenvat Credit availed and already utilized by the appellant for payment of service tax on their activity of transportation of gas through pipelines. Accordingly, the impugned order is set aside and the appellant's appeal is allowed. 9. In as much as the assessee's app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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