TMI Blog2009 (12) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... es issued by them could take cenvat credit of any such service tax paid by the GTA. Thus the adjudicating authority confirm the demand with penalty. Held that-however the assessee’s appeal had already been disposed of by the Tribunal vide Final order No. 1243/09-SM, dated 29.9.2009 by which the impugned order had been set aside and the matter had been remanded to the original authority for de novo decision after considering the claim of assessee based on Chartered Accountant’s certificate that the credit though wrongly taken by it had not been utilized and that for this reason, it was not liable for penalty. In view of the Tribunal’s order dated 29.9.2009 setting aside the impugned order in appeal and remanding the matter to original adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 68(2) of the Finance Act, 1994 read with rule 2(1)(d)(v) of Service Tax Rules, 1994, it is the respondent as receiver of the GTA service were liable to pay the service tax and GTA providers were neither liable to pay any service tax nor the respondent on the basis of the GRs/invoices issued by them could take Cenvat credit of any such service tax paid by the GTA service providers. It is on this basis that after issue of show-cause notice, the Dy. Commissioner vide Order-in-Original dated 9-3-2007 confirmed Cenvat credit demand of Rs. 1,23,923 along with interest under rule 14 of the Cenvat Credit Rules, 2004 and besides this, imposed penalty of equal amount under rule 15 of Cenvat Credit Rules, 2004. On appeal to the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t though the credit amounting to Rs. 1,23,923 had been taken by the respondent on the basis of GTA service providers invoices but the same was not utilized in payment of duty and that the entire credit was reversed. He, therefore, pleaded that since the impugned order has already been set aside and the matter has been remanded to the original adjudicating authority, the department's appeal does not survive. 5. I have carefully considered the submissions from both the sides and perused the records. Against the same order-in-appeal reducing the penalty to Rs. 40,000 while the appellant filed an appeal No. 2760/07-SM to the Tribunal for setting aside the same pleading that the credit, though wrongly taken, had not been utilized by them and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
