TMI Blog2015 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (Judicial) Shri Nimesh Mehta, Advocate : For the Petitioner Shri A.B. Kulgod, Asstt. Commissioner (A.R.) : For the Respondent ORDER Per : Ramesh Nair This appeal is directed against Order-in-Appeal No. AV(250)183/2013 dtd. 21/8/2013 passed by the Commissioner (Appeals) of Central Excise Customs, Aurangabad, wherein the Ld. Commissioner (Appeals), rejected the appeal filed by the appellant. 2. The fact of the case is that the appellant are providing taxable service of Authorized Service Centre Service (Serving of motor Vehicles). During the period from April, 2007 to March, 2011, they had availed and utilized Cenvat credit of ₹ 11,68,494/-in respect of service tax paid on Goods Transport Agency (GTA) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit of ₹ 2,08,665/- already reversed by them vide entry dated 05.04.2010. 4. I confirm the recovery of interest ₹ 16,002/- on confirmed paid amount at S.No.(3) above at appropriate rate under section 75 of Finance Act, 1994. 5. I impose penalty of ₹ 11,68,494/- and ₹ 2,08,665/- on M/s. Kankariya Automobiles (P) Ltd., Nagar Manmad Road, Savedi, Ahmednagar under Rule 15(3) of CENVAT Credit Rules, 2004 read with Section 78 of Finance Act, 1994 for availing and utilizing inadmissible input service credit in respect of GTA service and inadmissible inputs viz. construction materials with intent to evade payment of service. 6. I impose penalty of ₹ 5,000/- under Rule 15A of CENVAT Credit Rules, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aruti Suzuki and not by the appellant, though the service tax paid by M/s. Maruti Suzuki to the government but in respect of said service tax and service charges i.e GTA, issued invoices wherein Service tax paid by them is clearly mentioned. It is his submission that as per Cenvat credit rules, invoice is valid documents for availing Cenvat credit in respect of service tax paid by service tax provider. Therefore even though service tax paid by M/s. Maruti Suzuki but subsequently it was born by the appellant by way of making payment of service charges as well as service tax to the M/s. Maruti Suzuki, therefore they are entitle for the Cenvat credit. In support he placed reliance on this Tribunal Judgment in case of Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the new cars which sold directly in the market, therefore there is no nexus of GTA service with their output services i.e. authorized station service. Therefore it is not input service, hence credit is not admissible. He placed reliance on the judgments in case of Asstt. Commr. C. C. Ex. ST., Visakhapatnam Vs. Shree Siva Sankar Automobiles [2012 (284) ELT 109 (Tri. Bang.)]. 5. I have carefully considered the submissions made by both sides and perused the record. 6. Cenvat credit in respect of GTA was availed by the appellant on inward transportation towards transportation of new cars from M/s. Maruti Suzuki to the appellant. The contention of the Revenue is that GTA is in respect of purchase of car which is sold as such and autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Hon ble Mr. Chief Justice Kalyan Jyoti Sengupta and Hon ble Mr. Justice Sanjay Kumar on 19-12-2013 dismissed the Central Excise Appeal No. 91 of 2010 filed by Commissioner of Customs, Central Excise Service Tax, Tirupati against the CESTAT Final Order No. 565/2009, dated 12-3-2009 as reported in 2010 (18) S.T.R. 64 (Tri. - Bang.) (Commissioner v. Shariff Motors). While dismissing the appeal, the High Court passed the following order : This appeal is preferred against the judgment and order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore, dated 12-3-2009 and sought to be admitted on the following suggested question of law : Whether CESTAT is correct in holding that the GTA service uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents. So, they are entitled for Cenvat credit under Rules 2(l) and 14 of Cenvat Credit Rules, 2004. In view of the above Tribunal judgment which was upheld by the Honble High Court, credit of GTA of transportation of new vehicle has been allowed as Cenvat credit for utilizing the same for payment of service tax on output service i.e. authorized station services. As regard the judgment relied upon by the Revenue in case of Sree Siva Sankar Automobiles (supra), I am of the view that judgment is passed by the single member bench of this Tribunal whereas Shariff Motors(supra) was passed by Division Bench and it was upheld by the Hon ble Andra Pradesh High Court therefore Sree Siva Sankar Automobiles(supra) is not applicable. Follo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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