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TMI Blog2024 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... osition, once a particular service suffered the total amount of service tax, demanding the same service tax on the same service even from some other person is not correct as this will amount to double taxation on the same service which in any case is not permissible as decided in the judgment of this Tribunal in the case of Shah Foods Limited. [ 2024 (8) TMI 1405 - CESTAT AHMEDABAD] Thus it is settled that even though, the service recipient is liable to pay service tax on reverse charge basis but once the service provider has paid the service tax, the same service tax cannot be recovered twice from the service recipient. Since, the service tax payment made by the provider of service is correct, the same is admissible as Cenvat credit in the hands of the appellant being a recipient of service. Accordingly, neither the service tax demand against the appellant nor the demand of Cenvat credit of the same amount is sustainable. Appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Sudhanshu Bissa , Advocate appeared for the Appellant Shri Himanshu P Shrimali , Superintendent ( AR ) appeared for the Respondent ORDER RAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of Shah Foods Limited vs. CCE ST- Ahmedabad-III 2024 (8) TMI 1405 which is under :- 5. On careful consideration of the submissions made by both the sides and perusal of the records. We find that there is no dispute about the law relevant to the present issue and the facts. As per the facts, even though the appellant is liable to pay service tax but the same service tax was discharged by the service provider. This has been accepted by the revenue and on that basis the original authority has dropped the proceeding. In this fact, we are of the view that even though any activity liable to service tax but the service tax has been discharged even though by different person other the person liable to pay the recovery of service tax again will amount to recovery of service tax twice of the same Tax which is not permissible under any circumstances. This very issue has been considered by this Tribunal in the case of Dhariwal Industries Limited wherein considering the various judgments the Tribunal has passed the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es stands paid by the transporter. It is the case of 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 Aurangabad2016 (46) STR (Tri. Mumbai) Heard both sides. 2. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstance, the said demand is not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 entitled to consequential benefit, if any, in accordance with law. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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