TaxTMI 
TaxTMI 
2011 (10) TMI 347
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; 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 vehicle parts classifiable under Chapters 73, 74 and 87 of the Central Excise Tariff. They were availing the benefit of Cenvat Credit of inputs capital goods and service tax under Rule 3 of the Cenvat Credit Rules, 2004. It has been noted that in respect of service tax lorry receipts, Bills, invoices of transporters of the consignments of the said inputs are received in the appellant's unit. As a consignee or consignor they are liable for paying service tax as defined under Rule 2(d)(v) of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-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 Credit as per provisions of Cenvat Credit Rules, 2004. The counsel has submitted that on going through Rules 2 (o), (p), (q) and (r) it is found that in case of the Goods Transport Agency service, the consignee or the consignor will be the person liable for the service tax and the person liable for paying service tax by the deeming provisions of the rules will be treated as service provider and the service will be treated as output service. He read over all the provisions of these rules ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. appearing for the Revenue, on the other hand, defended the Orders-in-Original and the Orders-in-Appeal passed by the lower authorities and submitted that in case of ITC Ltd. v. CCE [2011] 31 STT 463/11 Taxmann.com 166 (Bang. - CESTAT), Guntur 2011-TIOL-568-CESTAT-Bang it has been held by the Tribunal that the service tax on the Goods Transport Agencies service is to be paid in cash and cannot be paid through Cenvat Credit account. 6. The learned counsel for the appellant submi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i 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: "14. In CCE, Chandigarh v. Nahar Exports Ltd. reported in - (2007-TIOL-1907-CESTAT-DEL) = 2008(9) STR 252 (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 created a deeming fiction by provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of India Cements Ltd. (supra), wherein a manufacturer w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 service tax through Cenvat Credit account for the period prior to 19.4.2006 and, therefore, the three appeals involving the period prior to 19.4.2006 are allowed. 9. As regards the period beyond 18.4.2006, the Explanation to Rule 2 (p) was withdrawn on 19.4.2006. It is contention of the appellant that they should be treated as service provider in view of the legal provisions imposing the burden of paying the service tax till the law was further amended on 1.3.2008, I find that a....