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2015 (7) TMI 430 - AT - Service TaxGoods Transport Agency service - availing benefit of Notification No. 32/2004-ST - Whether GTA have utilized the CENVAT Credit - Held that:- as per Rule 2(r) of Cenvat Credit Rules 2004, "provider of taxable service includes person liable for paying service tax". As the appellant was liable to pay service tax on GTA service it became provider of the said GTA service. In terms of Rule 2(p) of the said Rules (as it stood during the relevant period) "output service means any service provided by provider of taxable service." So GTA service became the appellant's output service and therefore payment of service tax thereon by utilising Cenvat credit was clearly in accordance with provisions of Rule 3(4) of Cenvat Credit Rules 2004 which inter alia provides that Cenvat credit may be utilised for payment of service tax on any output service. It is not the case of Revenue that GTA service was not an input service for the appellant in terms of Rule 2(1) of Cenvat Credit Rules. Therefore the service tax paid by them under GTA service was available to them as Cenvat Credit. Seen in this light, the observation of the adjudicating authority in para 14.2 of the impugned order that the appellant "intentionally prepared the bills in terms of Rule 4A of the Service Tax Rules 1994 and debited the amount from the Cenvat credit account in spite of the admitted fact that they were not the provider of any output service and that they prepared the said bills just for the purpose of creating papers to show the payment of service tax and to take the credit of such tax which was otherwise not admissible to them" is devoid of any legal basis. Thus, the demand of ₹ 1,17,75,703/- is not sustainable. The stipulated declaration was stamped by the appellant on the invoices and all the goods transport agencies have given in writing that they had permitted the appellant to do so. They have also affirmed that they had not taken any Cenvat credit or the benefit of Notification No. 12/2003-ST. These GTA service providers were not even registered with the Service Tax department. - appellant had correctly availed of the benefit of Notification No. 32/2004-ST and there is no legal basis to deny the said benefit. Consequently the demand of ₹ 6,75,96,097/- under GTA service is clearly unsustainable - impugned demand is not found to be sustainable.
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