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TMI Blog2018 (6) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... - N/N. 32/2004-ST dated 3.12.2004 and N/N. 1/2006-ST dated 1.3.2006 - It was alleged that the appellants paid service tax on behalf of GTAs without having such declaration or endorsement on the consignment note to the effect that they have not availed CENVAT credit - Held that:- Admittedly, the owners of tempos, who carried out transportation for the appellants were not registered with the Central Excise or Service Tax department; therefore, the question of availment of CENVAT credit by them is a misnomer, there was no way that they could have availed the credit. Therefore, mere absence of endorsement on the invoices does not make the appellants ineligible for the availment of the substantial benefit i.e., abatement. The lower authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above lines and the same was adjudicated vide Order-in-Original No.83/2007 dated 30.7.2007 issued by the Deputy Commissioner of Service Tax. The appellants preferred an appeal before the Commissioner (A), who upheld the Order-in-Original and hence, this present appeal. 2. The brief issues that are to be considered in this case are: (i) whether debit through CENVAT account for discharge of service tax liability by the receiver of GTA service is permissible; (ii) Whether the appellant is eligible to claim abatement; and (iii) whether there is an excess payment as claimed by the appellant and if so, whether it can be allowed as refund in the absence of separate claim for such refund. 3. The appellant submitted that the authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x department; therefore, insistence of declaration by the GTA in the consignment note or invoices is a curable defect. Until September 2006, they had debited the GTA service tax in the CENVAT credit account. However, pursuant to the audit objection, they paid service tax on GTA service by cash. It was incumbent upon the department to allow re-credit of the CENVAT credit debited. The lower authority although raised a question as to whether the excess payment as claimed by the appellant could be allowed as a refund erred in not answering the question affirmatively or negatively. Prior to 19.4.2006, debit of GTA service tax in CENVAT credit account was legal and proper as per the ratio of Andhra Pradesh Paper Mills Ltd. vs. CCE: 2207 (8) STR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce as held by Tribunal in the case of CCE vs. Advance Diesel Eng. P. Ltd.: 2008 (10) STR 201 (Tri.-Ahmd.). Appellants further contended that as per Section 65(50b), only a person who issues consignment notes against receipt of goods for transportation by road is GTA. Service tax is not on all transportation by road but it is only on transportation by GTA in terms of decision of the Tribunal in the case of South Eastern Fields Ltd. vs. CCE: 2017 (47) ELT 93 (Tri.-Del.). The appellants submitted that excess tax paid of ₹ 90,545/- requires to be refunded and CENVAT credit of ₹ 60,440/- needs to be re-credited. 4. The learned departmental representative reiterated the findings of the Order-in-Original and Order-in-Appeal. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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