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TMI Blog2023 (10) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... e the payment of service tax was made by the transport agency which has not been altered by taking any action by the department, the cenvat credit of the said amount is also rightly available to the appellant. Once the service provider discharged the service tax where the service recipient is liable to pay the service tax, demand of service tax on the same service from the service recipient shall not sustain on the ground that the particular service which already suffered the service tax cannot be suffer the service tax twice on the same service. Accordingly, the service tax paid by the transport agency in the facts of the present case is the payment of service tax and not deposit. Therefore, no demand can be raised from the appellant, for the same reason once the amount paid by the transport agency being service tax amount, the appellant is eligible for cenvat credit. The impugned order is not sustainable. Hence, the same is set aside. Appeal is allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Mayur Shroff , Advocate appeared for the Appellant Shri Prashant Tripathi , Superintendent ( AR ) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) STR 628 (Tri-Ahmd.) Reliance Securities Ltd. Vs. Commissioner of Service Tax, Mumbai-II-2019 (20) GSTL 265 (Tri. Mumbai) Commissioner of Central Excise, Ludhiana Vs. Ralson India Ltd. 2008 (10) STR 505 (P H) SACI Allied Products Ltd. Vs. Commissioner of C. Ex., Meerut 2009 (183) ELT 225 (S.C.)-2005 (183) ELT 225 (S.C.) Commissioner of Customs Mumbai Vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (S.C.) Reckitt Colman of India Ltd vs. Collector of Central Excise 1996 (88) ELT 641 (SC) Prince Khadi Woollen Handloom Prod. Coop. Indl. Society vs. CCE 1196 (88) ELT 637 (SC) Commissioner of C.Ex., Chandigarh vs. Shital International 2010 (259) ELT 165 (SC) Collector of Central Excise vs. HMM Limited 1995 (76) ELT 497 (SC) CCE, Belgaum vs. Vasavadutta Cements Ltd 2018 (11) GSTL 3 (SC) 3. Shri Prashant Tripathi, learned Counsel appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the department case of demand of service tax on appellant and disallowance of cenvat credit is on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue that it was the liability of the appellant to pay the Service Tax under the reverse charge mechanism and the Service Tax paid by the transporter who provided the services, cannot be treated as a valid payment. However, the Revenue has not refunded the Service Tax paid by the transporters to them. 7. I find that the Central Board of Indirect Taxes and Customs vide TRU Clarification [***] F.No. 341/18/2004-TRU(PT), dated 17-12-2004 has clarified that if service tax due on transportation of a consignment has been paid or is payable by a person liable to pay Service Tax, Service Tax should not be charged for the same amount from any other person, to avoid double taxation. 8. In view of the above discussions, it is my considered view, that once tax has already been paid on the services, it was not open to the Department to confirm the same against the appellant, in respect of the same services. I accordingly, set aside the impugned order and allow the appeal with consequential relief, to the appellant. Umasons Auto Compo Pvt. Ltd. Vs. Commissioner of C.Ex Aurangabad- 2016 (46) STR (Tri. Mumbai) Heard both sides. 2. The appellant filed the appeal ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked against the appellant demanding Service Tax in terms of Notification No. 30/2012-S.T., dated 20-6-2012 @ 75% of the Service Tax on the value of manpower recruitments service received by them. Aggrieved by the said order, the appellant is before me. 3. The Ld. Counsel for the appellant submitted as the supplier of the service, itself has paid 100% Service Tax, therefore, no demand is sustainable against the appellant as the whole Service Tax on the said service has already recovered by the Revenue and no double tax can be demanded from the appellant. 3. To support his contention, he relied on the decision of this Tribunal in the case of Omeri India Pvt. Ltd. vide Order No. A/13212/2017, dated 12-10-2017 by CESTAT, Ahmedabad. 4. On the other hand, the Ld. AR reiterated findings of the impugned order. 5. Heard the parties and considered the submissions. 6. I find that as per Notification No. 30/2012-S.T., dated 20-6-2012 there is no dispute that the appellant was required to pay 75% of the Service Tax on Manpower Recruitment Agency Service availed. For the initial period, on pointing out by the Revenue the appellant immediately paid Service Tax. In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is the person liable for paying the service tax in relation to such service. I find that the words in respect of such taxable service as may be notified , have been inserted in sub-section (2) with effect from 1-7-2012 by the Finance Act, 2012. Thus I hold that prior to 1-7-2012, under the provisions of Section 68(1), the tax already has been deposited by the GTA in the facts of the present case. I further hold that Rule 2(1)(d)(v) of Service Tax Rules does not override the provisions of the Act. Moreover I find that it has been clarified by C.B.E. C. in Circular No. 97/8-2007-S.T., dated 23-8-2007 - clarifying that service tax may be paid either by the consignee or by the consignor or by the GTA, where the consignee is a manufacturer and the service in question is input service for them, in such case manufacturer would be eligible to take the Cenvat credit of the same. Accordingly I hold that the appellant have taken Cenvat credit in accordance with law. I further find that invoice is a prescribed document under Rule 9(1)(f) of Cenvat Credit Rules, 2004 on which credit can be taken. Accordingly I set aside the impugned order and allow the appeal. The appellant will be entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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