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2009 (11) TMI 89 - AT - Service TaxGTA service - Credit of service tax paid on ‘outward transport’ – submission that service tax paid on ‘outward transport’ is not claimed from the customers. However, this submission requires verification by the field officials and, in many cases, the amounts collected from the customers being a consolidated amount, it may not be possible to verify how much towards freight and service tax on freight is being collected from the customers as a part of the consolidated price – Facts of case or submission of appellants not recorded by the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore – [2009 - TMI - 34139 - CESTAT, BANGALORE]- we find that the referral Bench did not, in any way, mention ‘outward transportation’ to be a business activity nor was that a subject-matter of reference. The Larger Bench decision, on the other hand, without recording any submissions made on behalf of the appellants holds ‘outward transportation’ to be a business activity by allowing credit of service tax paid on such transportation. - This would result in accrual of no tax to the Government and undue benefit to the manufactures as he will take credit of the service tax paid from the Government and simultaneously also take an equal amount from the ultimate consumer. A tax legislation, in our view, cannot be interpreted in a way to deprive the Government of tax revenue while unjustly enriching the manufacturer. We find no direction in the cited LB decision to verify the facts of each case before allowing the credit in each case. - we adjourn the matter awaiting Hon’ble Karnataka High Court’s decision on department’s stay petition filed against said Larger Bench decision
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