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2011 (11) TMI 240 - AT - Service TaxUtilization of CENVAT credit on input services by recipient of GTA service - Commissioner (Appeals) vide his order dated 31.8.2009 has set aside order dated 25.2.2009 of the original authority in toto - Commissioner vide order dated 24.12.2009 chosen to modify the non-existing order-in-original dated 25.2.2009 by enhancing penalty – Held that:- Whether a recipient of GTA service, as a deemed service provider, can utilize the CENVAT credit while paying service tax due by them stands decided in favor of the assessee in the case of M/s Nahar Industrial Enterprises Ltd. & Ors.(2010 - TMI - 207889 - Punjab And Haryana High Court) As against the revisionary order of the Commissioner passed on 24.12.2009 enhancing the penalty is concerned, when the order-in-original dated 25.2.2009 stands already set aside by him on 31.8.2009. The Commissioner has chosen to exercise revisional jurisdiction in respect of an order which did not exist. On this ground alone, this order cannot be sustained. In view of the above, the order of the Commissioner (Appeals) dated 31.8.2009 is upheld and the order of the Commissioner dated 22.12.2009 is set aside.
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