TMI Blog2016 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... s factory, the credit can be availed at any one place Even if the service tax is not required to be paid and if the assessee pay the service tax, the same can be taken as Cenvat Credit. In the present case, since on the GTA service their Allahabad unit has already paid the service tax, the appellant was not required to pay the service tax once again therefore the service tax paid by the appellant is admissible as Cenvat Credit to the appellant. Thus the appellant is entitled for the Cenvat Credit. - Decided in favour of assessee - Appeal No. E/2116/2010 - Order No.A/87344/16/SMB - Dated:- 25-4-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Rajesh Ostwal, Advocate For the Respondent : Shri Sanjay Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Credit. Moreover, whether it is Allahabad to Kalher depot or from the appellants unit to depot all the activities belong to the appellants firm and the deemed service provider and recipient are one and the same, therefore credit is admissible. He alternatively submits that even if no service is involved or there is non taxable service and if the service tax is discharged the said service tax paid or any excess service tax paid can be claimed as Cenvat Credit. He submits that there is no dispute that the appellant have paid the service tax which they have taken as Cenvat Credit. In support of his submission he placed reliance on the following judgments: (i) Bajaj Allianz General Insurance Co. Ltd. Vs. Commr. of C. Ex. Pune-III-2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if service was undertaken other than the appellants factory, the credit can be availed at any one place. In the present case, the credit was admittedly taken by the appellant and the same was not taken by any other unit. Without prejudice to the above, I also found that as per the judgments relied upon by the Ld. Counsel, even if it is accepted that on the part of the appellant no service exist, the payment of service tax made by the appellant is the service tax paid in excess, therefore the credit of such excess paid service tax is allowable. The decisions relied upon by the Ld. Counsel are reproduced below: (i) Baja Alliianze General Industries Co. Ltd. (Supra) has held as under- 7.5 From the above discussion, it is very much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved as under :- Further, the bar of unjust enrichment will also not apply in the present case. The appellants have taken credit of the tax paid by them; therefore the same cannot be said to be passed on to the customers. In these circumstances we hold that the Cenvat Credit taken by the appellant is nothing but refund of the Service Tax paid by them on the services on which they were not required to pay Service Tax. 8. With these observations, we hold that the appellant is entitled to take the Cenvat Credit in the facts and circumstances of the case. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any . (ii) Sarda Energy Minerals Ltd. (supra) has held as under- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid service tax of ₹ 2,25,702/-. The appellants subsequently took credit of the service tax amount. During audit it was found that the transport of goods was done in container by rail. It is the contention of the Department that transport by rail was not liable for payment of service tax prior to 1-5-2006 and hence for the impugned period the appellants were not eligible for taking service tax credit for the service which was not taxable. 5. It has not been contested by the appellants that service tax was not payable in respect of rail transports. The Department has also proceeded on the basis that rail transport service was not taxable prior to 1-5-2006. Hence, the tax amount of ₹ 2,25,702/- which was paid by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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