TMI Blog2014 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... s reason as seen from the last but one paragraph and other paragraphs of the many unnumbered paragraphs in the order-in-appeal. The Revenue has filed this appeal challenging this finding of the Commissioner (Appeal) - even though the word utilization has been used in the show-cause notice, the issue of eligibility is part of the issue of utilization. If credit is taken for ineligible credit, then its utilization is not proper. The argument canvassed by the respondent is a hyper technical argument. Further the eligibility for credit is a legal argument which can be taken at any stage of the proceedings. At the same time the respondent has to get an opportunity to argue this point and there has to be clear decision on the issue after statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. to the buyers' premises sold on account of the party, i.e., service tax is paid on transportation of goods from the factory of the franchisee to the premises of buyers of M/s. Ghari Industries Pvt. Ltd. The service tax so paid is distributed by the party's headquarters' to the factories of the party mentioned above, which is utilized for payment of service tax or Cenvat duty by them. And whereas on the scrutiny of the S.T. 3 returns (RUD No. 1) of the party (M/s. Rohit Surfactants Pvt. Ltd.) for the period October, 2005 to March, 2006, it is seen that they have paid ₹ 55,08,738 as service tax and ₹ 1,10,143 as education cess on goods transport service. This tax paid on GTA service has been distributed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph of the showcause notice as a simple error. The third of the unnumbered paragraphs in the order-in-original reads as under: The party pays service tax on the freight paid by them on the transportation of soap and detergents from the factory of M/s. Rohit Surfactants Pvt. Ltd. to the buyers premises sold on account of the party, i.e., service tax is paid on transportation of goods from the factory of the franchisee to the premises of buyers of M/s. Ghari Industries Pvt. Ltd. The service tax so paid is distributed by the party's headquarters' to the factories of the party mentioned above, which is utilised for payment of service tax or Cenvat duty by them. From this paragraph also it is not clear who paid the freig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as input service for providing output service of intellectual property right. The transportation of goods from one destination to other cannot be treated as input service for the royalty received by the appellant for allowing the use their brand name 'Ghari'. During arguments in the Tribunal no issues were raised regarding facts and the arguments proceeded on the basis that the facts stated in the impugned order are correct. The legal issue that was raised while arguing the case was that the show-cause notice raises the issue of utilization of credit only and not eligibility for taking credit. The adjudication order denies credit for the reason that transportation is not an input service for providing intellectual propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter statement of facts clearly. We are of the view that this matter involves a substantial issue to be decided. But the impugned orders of the lower authorities are not maintainable and the issue needs to be decided afresh stating all facts clearly without giving any room for doubts on facts in question and issues in question. So the impugned order is set aside and the matter is remitted to the adjudicating authority for a denovo adjudication after giving opportunity for the respondents to make his submissions on the eligibility to credit. The basic question appears to be whether, the respondents are doing the transportation of goods from the premises of the licensees to the dealers of the branded goods for promotion of the brand name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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