TMI Blog2011 (6) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat credit thereof - As the period involved in this is case is prior to 19.4.2006 therefore the impugned orders are liable to be set aside - Decided in favour of assessee. - E/752, 759 & 760/2007 - 389 to 391/2011 - Dated:- 9-6-2011 - M V Ravindran, B S V Murthy, JJ. For Appellant: Shri M S Nagaraja, Adv. For Respondent: Shri Ganesh Haavanur, SDR Per: M V Ravindran (Oral): All these appeals are directed against Order-in-Original No.5/2007 dated 23.8.2007; Order-in-Original No.4/2007 dated 23.8.2007 Order-in-Original No: 3/2007 dated 2.8.2007, respectively. 2. Heard both sides and perused the records. 3. Since all these three appeals are raising an identical issue, they are being disposed off by this common ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority is correct. He reiterates the findings of the Adjudicating Authority. 7. On a careful consideration of the submissions made, we find that the issue involved in this case is now settled by the decision of this bench in the case of Shri Tubes Steels Pvt. Ltd. (supra). We record facts as has been reproduced in the said judgment, which is as under: The respondents herein are the manufacturers of excisable goods and holders of Central Excise registration certificate and are also registered for payment of service tax under the category of Goods Transport Agency (GTA services). The respondents had utilized cenvat credit in relation to the payment of service tax on GTA services received by them. The Department whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2007. In other words, it covered period subsequent to the deletion of the explanation clause from definition of the term 'output service'. Undoubtedly it included some part of the period prior to 19-4-2006. But in the order this aspect does not seem to have been considered. 14. In CCE, Chandigarh v. Nahar Exports Ltd. reported in 2008 (9) S.T.R. 252 (Tri.-Del) = 2008 (223) E.L.T. 205 (Tri. Del.), the Tribunal after taking note of the explanation clause held thus, "8.1 Under clause (p) of Rule 2, there is reference to taxable service provided by the provider of taxable service. Therefore, unless a taxable service is provided, ordinarily it would not fall under the definition of 'output service'. However, the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere input service is received by a person, who by virtue of his business has to pay service tax as a recipient, and who, but for the deeming fiction, would not be able to avail the benefit of Cenvat credit and the tax burden will rest on him, though he was not a consumer. Therefore, the explanation appears to have been enacted with a view to benefit a person who is liable to pay service tax as the recipient of taxable service, so that he can utilize the Cenvat credit for payment of service tax payable by him as recipient of any of the taxable services in respect of which a recipient is held to be liable to pay tax. However, this view would not be tenable, in view of the binding decision of the Division Bench in the case or India Cements Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. In the result therefore matter in hand relates to the period prior to 19-4-2006 while expressing our respectful agreement with the view taken in the case of Nahar Exports Ltd. case (supra), we find no case made out for interference in the impugned order. Hence, the appeal fails and is hereby dismissed." 7.2 We find that the ratio of the case will be squarely applicable in all these cases, as the period involved in this is case is prior to 19.4.2006. Respectfully, following the said ratio, we hold that the impugned orders are liable to be set aside and we do so. Impugned orders are set aside and the appeals are allowed with consequential relief, if any. (Pronounced and dictated in open Court) - - TaxTMI - TMITax - Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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