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TMI Blog2021 (9) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... o longer res-Integra as the same has been settled in favour of the assessee - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 11861 of 2018-SM - A/12372/2021 - Dated:- 20-9-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri Dhaval Shah, Advocate for the Appellant Shri Dharmendra Kanjani, Superintendent (AR) for the Respondent ORDER This issue involved is that whether the appellant is entitled for the Cenvat credit in respect of Service Tax paid on Man Power Supply and Recruitment Agency Service and Security Service under Reverse Charge Mechanism when the service tax was 100% paid by the appellant as a service recipient. Whereas, the Notification No. 30/2012-ST dated 20.06.2012 provides the service provider is supposed to pay the service tax on 25% of the value of the service and service recipient is required to pay the service tax on 75% of the value of the service. The contention of the revenue is that as per Proviso to Rule 4 (7) of Cenvat Credit Rules, 2004 credit of service tax paid by the recipient shall be allowed only if the service tax is paid by the recipient as a person liable to pay the service tax. The contention of the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully considered the submission made by the both the sides and perused the record. I find that there is no dispute that the service tax was indeed paid by the appellant being a service recipient even though it was supposed to be paid by the service provider. 5. In my view irrespective of the person whether it is service recipient or service provider is liable to pay the service tax but so long the service tax was admittedly paid even by the recipient of the service, the Cenvat credit cannot be denied. This issue is no longer res Integra as this tribunal in following judgments for categorically hold that even though the portion of the service tax which was supposed to be paid by the some other person, so long the service tax was paid, the credit of said service tax cannot be denied to the recipient of service. Omori India Pvt. Ltd Vs. CCE ST., Vadodara-I-2017 (11) TMI 759-CESTAT Ahmedabad. 5. I find that the appellant though required to pay 75% of the service tax liability, on receiving the man-power supply service from the service provider, however, initially the entire amount of service tax was paid by the service provider and later recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile accepting the department s allegation of inflation of the value of intermediate goods to load the assessable value, observed that if the department was of the opinion that the value of the final product was depressed, it could have charged the original manufacturer unit in under-invoicing their product. This was however, not done. Valuation was duly approved and the payment of duty was also accepted. The Tribunal further observed that We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit. 6. In view of the above principle and applying the same to the facts and circumstances of the case, I do not fine any merit in the impugned order. Consequently, the same is set aside and the appeal is allowed with consequential relief, if any, as per law. Transpek Silox Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule (1) puts certain limitations on such immediate availability of Cenvat credit. We are however, not concerned with the proviso. 8. In terms of Rules 3 and 4 of the Cenvat Credit Rules, 2004, a manufacturer would be entitled to avail the Cenvat credit in respect of the inputs used for the manufacture of a final product or in providing taxable service of the excise duty specified in First Schedule to the Excise Tariff Act. Insofar as the respondent is concerned, he had purchased the inputs and utilised the same for manufacture of a final product. Such goods were duty paid. Rules 3 and 4 of the Cenvat Credit Rules, 2004, thus would enable him to avail the Cenvat credit. It is a different thing that the supplier of the goods to the respondent paid excise duty on such product under mistaken belief. In law as declared by the Supreme Court in case of Collector of Central Excise, Patna v. Tata Iron and Steel Co. Ltd. (supra), no duty was payable on such product. Strictly speaking therefore, such amount deposited by the original manufacturer would not partake the character of excise duty. However, when the department did not dispute the classification of such manufacturer, accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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