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TMI Blog2008 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2007 - ST/188-189/2008 - Dated:- 22-4-2008 - Justice S.N. JHA, President and M. Veeraiyan, Member (T) Ms. Reena Khair for the Appellant. B. K. Singh for the Respondent. [Order per M. Veeraiyan, Member (Technical).] - These appeals by the same appellant involve common, issues and therefore, are being dealt with by a common order. 2. Heard both sides. 3.1 Relevant facts, in brief, relating to Appeal No. ST/567/06 are as follows:— (a) The appellant was putting up 'Rail and Universal Beam mill' and in that connection entered into two agreements with M/s. JFE Corporation, Japan for getting technical assistance and accordingly, received the services. (b) The appellant took service tax registration on 14-10-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, dated 16-12-2002. (ii) He held that the credit taken totally amounting to Rs. 22,10,573 was not admissible on two grounds. The credit amounting to Rs. 21,83,009 was held as not admissible as the same has been taken on the basis of documents issued prior to 5-3-2004, the date on which they came under the purview of output service provider and an amount of Rs. 27,564 for the period after 5-3-2004 was taken with out producing the original invoices. (iii) He held that the services received by them is only input service; during the relevant period they were not registered for any output service; that the credit earned on such input services can be utilized only towards payment of tax on the output services. He, therefore, ordered recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to transfer of technology and did not relate to the consulting engineers service and that they need not have paid the service tax. He submitted that though they were not provider of services, they paid the tax only as directed by the Department. Service tax paid by them was towards 'services rendered as deemed service provider' in terms of Rule 2(r) of the Cenvat Credit Rules. The services for which they have paid the tax is 'deemed output service in terms of rule 2(p) of the Cenvat Credit Rules'. Having paid the service tax, they were entitled to take the Cenvat Credit and that there was no time-limit prescribed for availing the Cenvat credit. Therefore the denial of Cenvat credit was not correct. 4.2 Regarding the value of out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the provider, can their actual status as the recipient be denied? They have played the dual role as provider of deemed output service and as actual recipient of service. Merely because they were required to pay the tax on behalf of the supplier, they should not be denied the right as a recipient. Therefore, the credit taken by them cannot be denied on this ground. The credit amounting to Rs. 21,83,009 has been held as not admissible as the same has been taken on the basis of documents issued prior to5-3-2004, the date on which they actually become the output service provider. The date 5-3-2004 has no legal significance to the present case. During the period prior to 5-3-2004, the service received by them is deemed to be an ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices on their own, utilisation of available credit on the said service, is also permissible. The appellant was entitled to utilise the same without such restriction. Thus the utilisation of credit was permissible in view of the extended definition of output service and in view of the fact they also started rendering output services. The decisions cited also support the case of the appellant. Therefore, we hold that credit taken and its utilisation were regular. 5.5 We also hold that the appellant was not required to pay education cess amounting to Rs. 43,128 as the demand relates to the period prior to 10-9-2004, when the levy is not applicable to service tax. 6. In view of the above, we allow both the appeals with consequential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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