TMI Blog2008 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... te, for the Appellant. Shri D.S. Negi, SDR, for the Respondent. [Order per: M. Veeraiyan, Member (T)]. - This is an appeal against the order of the Commissioner (Appeals) No. Commr(A)/175/VDR-II/2007, dt. 28-8-07. 2. Heard both sides. 3. The relevant facts, in brief are as follows: (a) The appellant is a manufacturer of Steel billets/S.S. bars, Wire rods and registered accordingly with the Central Excise authorities. They are also registered with the Central Excise authorities as service tax assessee. They received required raw materials from different parties and for the said purposes they used the services of goods transport agency. In respect of such receipts, they paid the freight and accordingly paid the service tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) against the confirmation of demand of duty and interest. 4. The learned advocate made the following submissions. (a) In terms of Section 68(2) of the Finance Act, 1994 read with Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the appellant is a "Person liable for payment Service Tax" in relation to taxable service provided by the non-resident Commission Agents. (b) In terms of Rule 2(q) of the Cenvat Credit Rules, 2004 "Person liable for payment Service Tax" has the meaning as assigned to it in Rule 2(1)(d) of the Service Tax Rules, 1994. Thus, for the purpose of Cenvat Credit Rules, 2004 and the Service Tax Rules, 1994 the term 'Person liable for paying Service Tax" has the same meaning. (c) In terms of Rule 2(r) of the Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax does not provide any taxable services, the service for which he is liable to pay service tax shall be deemed to be the output service. In view of this, though the Appellant is not actually providing the services, the same is deemed to be "Output Service" for the purpose of the Cenvat Credit Rules, 2004." 5.1 The learned SDR reiterates the findings of the Commissioner (Appeals). He submits that in respect of the services of goods transport agency, the appellants cannot be considered as provider of any taxable service. He relies on Board's Circular No. 97/8/2007, dt. 23-8-07 issued from F. No. 137/85/2007-CX-IV. 5.2 He also relies on the following decisions. (a) 2007 (7) S.T.R. 26 (T)- CCE v. Nahar Industrial Enterprises Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of consignors shall not be eligible as credit to the respondents. (e) the respondents, while paying service tax on GTA service availed in connection with .removal of their finished goods from factory are entitled to utilize, for payment of service tax on such service, the credit of tax paid on the input GTA service availed by them in connection with receipt of inputs received in their factory as held by the Tribunal in the case of M/s. India Cements Ltd. cited supra. (f) notwithstanding taking of credit of service tax paid under goods transport operator/agency services in respect of incoming consignments, the respondents are eligible to avail the benefit of notification No. 32 /2004-S.T., dated 3-12-2004. (g) in the given fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is, therefore, rejected. (Pronounced in Court on..............) Sd/- (M. Veeraiyan) Member (Technical) 10. [per: Archana Wadhwa, Member (J)]. - I have gone through the order proposed by my ld. Brother with which I do not find, myself in agreement. Separate order was not being recorded by me for a long time, as a more or less an identical issue, which may have some bearing in the present case, was referred to Larger Bench in the case of M/s. India Cements Ltd. [2007 (8) S.T.R, 43 (Tri.-Bang.) = 2007 (216) E.L.T. 81 (Tri.-Bang.)] and the result was being awaited. As the decision in the above case has not become available till date, I proceed to record my separate order. 11. As the issue involved already st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench. Sd/- (Archana Wadhwa) Member (Judicial) DIFFERENCE OF OPINION 13. Whether the appeals are to be rejected as held by ld. Member (Technical) or the same are to be referred to Larger Bench for decision on the disputed issue as held by ld. Member (Judicial)? Sd /- Sd/- (M. Veeraiyan) (Anchana Wadhwa) Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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