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TMI Blog2008 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 - Dated:- 24-9-2008 - Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) Mrs. Sudha Koka, SDR, for the Appellant. S/Shri K.S. Ravi Shankar and K.S. Naveen Kumar, Advocates, for the Respondent. [Order per T.K. Jayaraman, Member (T)]. - Both revenue and the party have filed appeals against the impugned Order-in-Original No. 80/2007 dated 21-8-2007 passed by the Commissioner of Service Tax, Bangalore. 2. S/Shri K.S. Ravi Shankar and K.S. Naveen Kumar, learned advocates, appeared for the party. Mrs. Sudha Koka, learned SDR, appeared for the revenue. 3. We heard both sides. 4. The party is a company engaged in the manufacture and sale of ready-made garments bearing the brand names 'Wrangler' and 'Lee' w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for payment of duty on 'output service'. In the present case, according to the learned Commissioner the 'Intellectual Property Service' can by no stretch of imagination be called an 'output service' provided by the party, therefore, the payment for the same cannot be made by availing the Cenvat credit on the 'input services'. This is the thrust of the argument of the Commissioner. Therefore, he confirmed the demand and other proposals in the Show Cause Notice. 6. The party is highly aggrieved over the impugned order and they have made several grounds. They have invited the attention of the Tribunal to the definition of 'output service' in Rule 2(p) of Cenvat Rules wherein in the explanation it has been clarified that if a person lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, specifically prohibits that taxable services provided from outside India and received in India shall not be treated as 'output service' for the purpose of availing Cenvat credit. Hence, only from 19-4-2006 Cenvat credit cannot be used for paying Service tax on taxable services. 8. The party relied on the following decisions of the Tribunal in support of their contention. (a) CCE v. Flowserve Microfinish Valves P. Limited = 2008 (10) S.T.R. 21 (T) = 2007 (83) RLT 719 (T). (b) CCE v. Flowserve Microfinish Pumps P. Limited - 2008 (9) S.T.R. 278 (T) (c) RRD Tex P. Limited v. CCE - 2007 (8) S.T.R. 186 (T) (d) India Cements Limited v. CCE - 2007 (7) S.T.R. 569 (T) = 2008 (223) E.L.T. 78(T) (e) CCE v. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax in accordance with provisions of law and no reasonable cause was shown by the assessee for such failure. 10. On a very careful consideration of the matter and looking into the statutory provisions, it is a fact that during the relevant period, the person who is liable to pay Service Tax and who does not provide any taxable service or does not manufacture final products, shall be deemed to be an output service provider. In other words, when a person receives some service and he is liable to pay Service Tax on the service which is received, even the same service by a deeming fiction will be deemed to be an 'output service'. In view of such a deeming fiction, during the relevant period, the service tax on such deemed output service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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