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TMI Blog2008 (5) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... . Agarwal, Member (T) Final Order No. A/283/WZB/2008-CII/CSTB dated. 13-5-2008 certified on 12-6-2008 in Appeal No, ST/146/2007-Mum. Shri Bharat Raichandani, Adv. for Appellant. Shri P.M. Govande, JCDR for Respondents. [Order Per M.V. Ravindran Member (J)] - This appeal is directed against the Order-in-Appeal No. SRK/11/RGD/ 2007 dated 6.7.2007 vide which the Commissioner (Appeals) has upheld the impugned order that confirmed the demand of Service Tax and also imposed penalties on the appellant. 2. Relevant facts that arise for consideration are that the appellant had discharged the Service Tax liability on the services received from goods transport agency for the period January 2005 to February 2006 through Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,664/- Education Cess) is justifiable and is to be upheld. Accordingly the impugned order has to be upheld." 3. Ld. Counsel appearing on behalf of the appellants submits that in an identical issue in respect of the very same appellant, the Tribunal in Final Order No. A/327/08/WZB/SMB CII dated 29.2,08 has held in their favour. It is his submission that the issue is now squarely covered by the decisions of the Division Bench of the Tribunal in the case of M/s. Bhushan Power and Steel Ltd. 2008 (84) RLT 95 (CESTAT-Kol) =2007-TIOL-1828-CESTAT-Kol., India Cements Ltd. Vs. CCEx, Salem 2007 (80) RLT 719 (CESTAT-Che.)=2007 (7) STR 569 (Tri. -Chennai) and in the case of Andhra Pradesh Paper Mills Ltd. Vs. CCEx, Visakhapatnam-II 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh TR6 Challan. We find, that the ld. Jt. CDR was emphasizing on the explanation to Rule 2(p) of Cenvat Credit Rules, 2004, while ld. counsel would rely upon the provisions of Rule 2(r) of the very same Cenvat Credit Rules 2004. In order to appreciate the rival claims it is necessary to reproduce the said Rule 2(p) 2(r): "(p) "output service" means any taxable service provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly; Explanation - For the removal of doubts it is hereby clarified that if a person liable for paying service tax does not provide any taxable service or does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be:" It can be noticed from the above reproduced rules that the Cenvat credit can be utilized by the assessee for the payment of Service Tax on any output services. As has been held, we are of the view that the output services definition includes the person liable for paying Service Tax. The Service Tax liability on the service receiver from goods transport agency has been fastened on the receiver of the services of the goods transport agency, which would mean that they are considered as provider of taxable services. If that be so, the utilization of Cenvat credit under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich appellant paid Service tax deemed to be an 'output service' in terms of explanation to Rule 2(p) of Cenvat Credit Rules, 2004 as the appellant was only a recipient of transport of goods by road service - When service was deemed to be an output service the Service tax can be paid by way of Cenvat credit in terms of Rule 3(4)(e) ibid - Demand of tax set aside - Rules 14 and 15 ibid - Section 73 of Finance Act, 1994. [para 4] Accordingly, in view of the above reasonings and respectfully following the decisions of the Co-ordinate Bench of the Tribunal, we hold that the impugned order is not sustainable, liable to be set aside and we do so. The appeal is allowed with consequential relief, if any. (Pronounced in the Court.) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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