TMI Blog2011 (10) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, J. Bharat Raichandani for the Appellant. Sanjay Kalara for the Respondent. JUDGMENT 1. These are four appeals having common issue involved. Therefore, all these appeals are being taken up together. Details of the appeals and the period involved is as under: Appeal No. Period involved 1. ST/130 January 05 to March 06 2. ST/129/07 April 05 to September 05 3. ST/ 165/07 October 05 to March 06 4. E/869/01 April 06 to 30 September 06 2. Brief facts of the case are that Ms/ Uni Deritend Ltd (hereinafter referred to as (appellant) are manufacturer of castings of iron and steel, copper and motor vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service to the customer. Therefore, it was alleged by the department that amount of service tax paid by them through Cenvat Credit Account is not admissible to them and according Show Cause Notices for different periods were issued to them in all these four appeals. Show Cause Notices were contested by the appellant and were adjudicated by the original authority against the appellant confirming the service tax amount and by imposing penalties on the appellants. Against the Orders-in-Original, they preferred appeals to the Commissioner (Appeals) who also dismissed their appeals. Against these Orders-in-Appeal, the appellants are before me in appeals. 3. The learned counsel for the appellant submitted that they have utilized the Cenvat Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency service. He submitted following case law in support of this contention: (i) CCE v. Nahar Industrial Enterprises Ltd. [2007] 10 STT 117 (New Delhi - CESTAT) (ii) CCE v. Nahar Industrial Enterprises Ltd. [CEA No. 99 of 2008 and others, dated 6-5-2010] (iii) CCE v. Shri Tubes Steels (P.) Ltd. [2011] 32 STT 235 (Bang. - CESTAT) 4. He submitted that in all these cases, the benefit of service tax through Cenvat Credit account has been allowed by the Tribunal and the Hon'ble Punjab Haryana High Court has allowed this benefit in case of Nahar Industrial Enterprises Ltd (supra). He therefore submitted that in view of the Hon'ble High Court of Punjab Haryana's decision, their appeals should be allowed. 5. The learned A.R. app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Agency service. On the other hand, it is the contention of the appellant that the recipient of the Goods Transport Agency service are deemed to be output service provider under law and they therefore are entitled to pay service tax on Goods Transport Agency service by utilizing the Cenvat Credit. I find that the issue has been settled by the Tribunal in various case law cited by the appellant. I also find that in a recent decision of the Bangalore Bench in the case of Shri Tubes Steels (P.) Ltd. (supra) it was held by the Tribunal that for the period prior to 19.4.2006, the service tax on Goods Transport Agency service can be paid through Cenvat Credit account. In the said order, the Tribunal has held in paras 14 and 15 as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her a manufacturer or a provider of taxable service, there would be no need for making a provision for such a person by way of a deeming fiction, as is sought to be done under the explanation, because, such a taxable service provider or a manufacturer can always utilize the Cenvat credit, as per the Rules. However, where a person is neither a provider of taxable service nor does he manufacture any final product, difficulty may arise in cases where 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the issue in question is concerned to the extent it related to the period prior to 19/04/2006, the consistent view taken by the Tribunal is that in view of the explanation clause the assessee would be entitled to avail the benefit of such service tax in order to claim the Cenvat Credit thereof. In view of the detailed reasoning given in Nahar Exports Ltd. case - (2007-TIOL-1907-CESTAT-DEL) = [2008(9) STR 252] in relation to the explanation clause, in the absence of any other material which could justify a different view in the matter, we do not find any justifiable reason to take a different view." 8. Therefore, following the decision of the Tribunal in case of Shri Tubes Steel (P.) Ltd. (supra), the appellants are entitled to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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