TMI Blog2015 (7) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of service tax thereon by utilising Cenvat credit was clearly in accordance with provisions of Rule 3(4) of Cenvat Credit Rules 2004 which inter alia provides that Cenvat credit may be utilised for payment of service tax on any output service. It is not the case of Revenue that GTA service was not an input service for the appellant in terms of Rule 2(1) of Cenvat Credit Rules. Therefore the service tax paid by them under GTA service was available to them as Cenvat Credit. Seen in this light, the observation of the adjudicating authority in para 14.2 of the impugned order that the appellant "intentionally prepared the bills in terms of Rule 4A of the Service Tax Rules 1994 and debited the amount from the Cenvat credit account in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to ₹ 1,17,75,703/- was held to be wrongly taken and utilised and was therefore disallowed and ordered to be recovered along with interest and penalties. 2. The appellant is a manufacturer of iron and steel products and recipient of Goods Transport Agency Service. It paid service tax on GTA service by utilising Cenvat credit and took the credit thereof on the basis of its own invoices issued in respect of the service tax on GTA service so paid by it. The adjudicating authority held that it was not a GTA service provider and therefore service tax under reverse charge mechanism was required to be paid in cash and also that it had irregularly taken credit of service tax paid on GTA service on the strength of its own invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(p) of the said Rules, output service means taxable service provided by the provider of taxable service . It stated that as it was deemed to be a provider of GTA service the service tax thereon was rightly paid by utilisation of Cenvat credit. It cited following judgements in support of its contention: (i) CCE Vs. Nahar Industrial Enterprises - 2012 (25) STR 129 (P H). (ii] Panchmahal Steel Vs. CCE - 2014 (34) STR 351 (LB). (iii) CCE Vs. Cheran Spinners Ltd. - 2014 (33) STR 148 (Mad.) As GTA service was its input service, the credit of service tax paid on GTA service was rightly taken, contended the appellant (ii) As regards the demand of ₹ 6,75,96,097/- the appellant has contended that the transporters were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of receipt of service and that the stamp to that effect was put on the invoices only subsequently and therefore the benefit of Notification No. 12/2003-ST cannot be extended on the basis of such declaration subsequently made. He added that the appellant had intentionally prepared bills in accordance with Rule 4 (a ) of Service Tax Rules 1994 in respect of service tax paid on GTA service so as to avail of the Cenvat credit thereof although it was not the provider of the output service [i.e. GTA service). Putting of rubber-stamp-declaration on the invoices subsequent to the receipt of service also shows mis-statement on their part thus argued the ld. DR. 6. We have considered the contentions of both sides. We find that as per Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit account in spite of the admitted fact that they were not the provider of any output service and that they prepared the said bills just for the purpose of creating papers to show the payment of service tax and to take the credit of such tax which was otherwise not admissible to them is devoid of any legal basis. Thus, the demand of ₹ 1,17,75,703/- is not sustainable. 7. In terms of Notification No. 32/2004, service tax under GTA service is payable on 25% of the gross amount subject to the condition that Cenvat credit of duty paid on inputs and capital goods used for providing such service is not taken and benefit of Notification No. 12/2003-ST is also not taken. Thus so long these conditions are satisfied the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of instructions set out in an earlier Board Circular dated 27-7-2005, that the benefit of abatement under Notification No. 32/2004-S.T. may also be extended in past cases, if tax payers produce a general declaration from the GTA that the benefits under Notification No. 12/2003-S.T. were not availed. Such general declarations were furnished by the assessee. 6. In the light of the above, the order of the Commissioner, dated 15-1-2009 cannot be sustained and is quashed. No order as to costs . In the case of Micromatic Grinding Tech. Ltd. (supra), it was held that abatement under Notification No. 32/2004-ST and 1/2003-ST could not be denied on the ground that declaration was not made on each and every consignment as it was merely pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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