TMI Blog2010 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... holding the penalty in respect of the outward freight - There was no mala fide in payment of service tax through Cenvat credit and there is no justification for imposition of penalty under Section 76 and 77 - The impugned order, so far as it upheld the penalty on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994, is set aside. - ST/682/2010-SM(BR) - 1450/2010-SM(BR)(PB) - Dated:- 25-11-2010 - Shri Rakesh Kumar, JJ REPRESENTED BY : Shri V.R. Sethi, Advocate, for the Appellant. Shri Anil Khanna, DR, for the Respondent. [Order]. - The facts leading to this appeal are, in brief, as under. 1.1 The appellant are manufacturers of Black Pipes, G.I. Pipes and CR Strips chargeable to Central Excise Duty u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilizing the Cenvat credit which was not correct, as the GTA service is an input service on which the appellant were required to pay the service tax as service recipient and service tax on the same could not be paid through Cenvat credit as Cenvat credit could be utilized only for payment central excise duty on the finished products and service tax on the output services; (c) During the period from January 2004 to September 2006, the appellant received business auxiliary service from the marketing agents located in various countries and the appellant were liable to pay the service tax on the payment made by them to these marketing agents as service recipient but the service tax amounting to Rs. 1,69,912/-, on the amount paid to marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter filed an appeal to the Commissioner (Appeals) and the Commissioner (Appeals) vide order-in-appeal No. 68/MA/RTK/2010 dated 11-2-10 - (a) set aside the service tax demand of Rs. 1,69,912/- alongwith interest; (b) set aside the penalty of Rs. 2,97,517/- imposed under Section 78 in respect of service tax demand of the same amount; and (c) upheld the rest of the order of the Joint Commissioner. 1.4 Against the above order of the Commissioner (Appeals) the present appeal has been filed. While the service tax demand of Rs. 6,05,369/- (Rs. 2,97,817 + 3,07,852) alongwith interest has not been challenged, as the appellant have already paid the same, the appellant in this appeal have challenged only the imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is before the Larger Bench, defended the impugned order reiterating the Commissioner (Appeals) s finding. 3. The allegation against the appellant is that during the period from October 2005 to July 2006 they paid the service tax on GTA service utilized by them as service recipient by utilizing Cenvat credit, while they were required to pay the service tax through PLA, as the GTA service received by them cannot be said to be the outward service and as per the provisions of Cenvat Credit Rules, 2004, the Cenvat credit taken by a manufacturer or service provider can be utilized by him only for payment of Central Excise Duty on the finished goods or service tax on the output services. I find that there are contrary judgments on this issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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