TMI Blog2011 (7) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... t be utilized for paying service tax for this period as well - As such, as far as the period beyond 18-4-2006 is concerned, held that the appellant/respondent-assessees are not entitled to utilize Cenvat Credit for payment of service tax on GTA service and therefore, the duty demand and demand of interest are justified - Penalty dropped. - E/1146 AND 1147 OF 2009 (MUM.) - A/297 AND 298 OF 2011/SMB/C-IV - Dated:- 14-7-2011 - S.K. GAULE, J. G.L. Deshpande for the Appellant. A.K. Prabhakar for the Respondent. JUDGMENT 1. Heard both sides. 2. The appellants filed these appeals against Orders-in-Appeal No. SR/191/NGP/2009 and SR/190/NGP/2009 both dated 4-9-2009 whereby the Commissioner (Appeals) upheld the orders of the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit was permissible to be utilized for payment of service tax upto 28-2-2008. In support of their contention they placed reliance on the decision of Hon'ble Punjab Haryana High Court in the case of CCE v. Nahar Industrial Enterprises Ltd. [CEA No. 99 of 2008, dated 6-5-2010.] They have also placed reliance on the Tribunal's decisions in the case of Gimatex Industries (P.) Ltd. v. CCE [vide order No. A/162 of 2011/SMB/C-IV dated 16-6-2011] and in the case of CST v. Phills Engineering Corporation [Final order Nos. A/440 441 of 2010-WZB/C-IV/SMB, dated 12-8-2010]. The learned Counsel has made alternate plea that since the issue involved is of interpretation of law and in view of various conflicting decisions in this case the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/s. ITC Ltd. (supra) wherein it was held that- "11. Thus, in respect of the persons providing some taxable output service/services and/or manufacturing dutiable final products, neither during the period prior to 19-4-2006 nor during the period with effect from 19-4-2006, the taxable service received by them, on which they were liable to pay service tax as service recipient under the provisions of section 68(2) of the Finance Act, 1994 read with Rule 2(1)(d) of the Service Tax Rules, 1994, could be treated as their 'output service' and service tax on the same was required to be paid in cash, not by utilizing Cenvat Credit. As regards the category of persons neither providing any taxable service nor manufacturing any dutiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period, a few of the learned counsels have argued that despite the deletion of Explanation to Rule 2(p) of the Cenvat Credit on 19-4-2006, the manufacturer-assessees should be deemed as service providers in view of the legal provision imposing the burden of paying service tax on them for GTA service received by them, till the law was further amended on 1-3-2008. This contention is opposed by the Department. I find that all the decisions which are in favour of the assessee-appellants/respondents have held them to be service providers for the period upto 18-4-2006 solely on the ground of the Explanation to the definition of output service under Rule 2(p). Hence, with the deletion of the Explanation with effect from 19-4-2006, the benefit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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