2013 (4) TMI 492 - AT - Service Tax

Exemption under Notification No.32/2004 dated 3.12.2004 denied - as per dept exemption extends only to a service provider and not to any other person - - Held that - As decided in Shree Rajasthan Syntex vs. Commissioner of Central Excise, Jaipur (2011 (8) TMI 265 - CESTAT, NEW DELHI) relying on Visaka Industries Ltd. case (2007 (7) TMI 32 - CESTAT, MUMBAI) & Nahar Industries Enterprises (2007 (3) TMI 201 - CESTAT NEW DELHI) which was confirmed by the Punjab & Haryana High Court consistently following the view that assessees are eligible to pay tax on GTA services received from their Cenvat Credit Account. It was further held that prior to the Notification dated 01.03.2008, the issue stands decided in favour of the appellant by several judgments and cenvat credit could be utilised towards service tax in respect of services received from GTA, in view of the deeming fiction in Rule 2(r) whereunder the service recipient is defined to be different service provider, if liable to service tax. In favour of assessee.

Summary

Issues:
1. Liability of service tax on goods transport agency services.
2. Eligibility for exemption under Notification No.32/2004.
3. Interpretation of Rule 2(p) and Rule 2(r) of the Cenvat Credit Rules, 2004.
4. Precedent cases supporting the utilization of Cenvat Credit for service tax on GTA services.

Analysis:

1. The appellant was assessed for liability of service tax on goods transport agency services, with additional charges including education cess, interest under Section 75 of the Finance Act, 1994, and penalties under Sections 77 and 76 of the said Act. The appellant, being the recipient of the service, was deemed ineligible for credit under Notification No.32/2004, which provides exemption only to the service provider. The Order in Original dated 5.2.2008 imposed these liabilities on the appellant.

2. The definition of output service under Rule 2(p) of the Cenvat Credit Rules, 2004, excludes services provided by the provider of taxable service. While this definition was amended later, it did not apply to the case at hand. Rule 2(r) defines the provider of service as including a person liable for paying service tax. The appellant's case was supported by the interpretation that service recipients could be considered as service providers for the purpose of utilizing Cenvat Credit for service tax on GTA services.

3. Citing the case of Shree Rajasthan Syntex vs. Commissioner of Central Excise, Jaipur, and other precedents, the Tribunal held that prior to the Notification dated 01.03.2008, assessees could use Cenvat Credit towards service tax on services received from goods transport agencies. The deeming provision in Rule 2(r) considered the service recipient as a different service provider if liable to service tax. The consistent rulings in various cases supported the appellant's position, leading to the allowance of the appeal and the quashing of the Order in Original.

4. The Tribunal's decision was based on the interpretation of relevant rules and precedents, establishing the appellant's entitlement to utilize Cenvat Credit for service tax on GTA services. The judgment emphasized the application of legal principles and past decisions to determine the appellant's liability and eligibility for exemption, ultimately ruling in favor of the appellant and setting aside the initial Order in Original without any costs imposed.