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2016 (6) TMI 197 - CESTAT MUMBAI

2016 (6) TMI 197 - CESTAT MUMBAI - TMI - Cenvat credit on service tax payment on GTA service - denial of claim on the ground that as per Rule 2(l) of Cenvat Credit Rules 2004, the credit can be availed only on the "input service" which is used by the manufacturer in or in relation to the manufacture of final products and clearance thereof upto place of removal - Held that:- There is no dispute that the appellant have paid the service tax on GTA service, which was pdrformed for transportation of .....

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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 Hasija, Supdt. (A.R) ORDER PER : RAMESH NAIR The appeal is directed against Order-in .....

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judicating authority and Ld. Commissioner (Appeals) denied Cenvat Credit on the ground that as per Rule 2(l) of Cenvat Credit Rules 2004, the credit can be availed only on the input service which is used by the manufacturer in or in relation to the manufacture of final products and clearance thereof upto place of removal. In the present case the services of GTA was provided for the transport of goods between the Allahabad unit and their Kalhar Depot, therefore the said service was not received .....

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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 o .....

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pugned order. He submits that Cenvat Credit can be allowed only in respect of input service which is defined under Rule 2(l) of Cenvat Credit Rules, 2004. As per the definition of input service the foremost condition is that the service should exist and the same should be used in or in relation to the manufacture of final products or for providing output service. In the present case, firstly the appellant have paid the service tax on the GTA service which was undertaken between their Allahabad u .....

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ion of goods from their Allahabad unit to Kalher depot. Therefore in my view the service tax paid in respect of certain service 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 .....

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, the appellants are not liable to pay Service Tax for the said services of the insurance agents. In these terms, whatever credit is taken by the appellant is nothing but the refund of tax erroneously paid by them. Similar issue came before the Hon ble Supreme Court in the case of CIT v. Mahalakshmi Textile Mills Ltd. - 1967 (66) ITR 710 (SC) wherein the Hon ble Supreme Court held that - 5. By the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised b .....

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in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. 7.6 We further find that in the case of Nitco Tiles Ltd. v. CCE, Mumbai - 2007 (220) E.L.T. 827 (Tri. - Mum.), this Tribunal observed as under :- Further, the bar of unjust enrichment will also not apply in the present case. The appellants have taken credit of the tax .....

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quential relief, if any . (ii) Sarda Energy & Minerals Ltd. (supra) has held as under- 2. As per facts on record, the appellant had availed GTA services during the month of December, 2004. However, as a recipient of such services, they were liable to pay Service Tax w.e.f. 1-1-2005. The appellant paid the Service Tax in respect of the said services availed during the month of December, 2004 and took the credit of the same. The Revenue entertained a view that the services availed in December, .....

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paid the Service Tax, they are entitled to the credit of the same. It is to be noted that no objection was raised by the Revenue at the time of payment of Service Tax by the appellant . (iii) Sterlite Industries (I) Ltd. (supra) has held as under- 2. During March 2006 to April 2006, the appellants entered into a contract with the transport agencies to carry copper anodes from Tuticorin to Silvasa. For this period, the appellants paid ₹ 85,51,033/- towards transportation charges to the tran .....

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e 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 appellants was not at all due to the exchequer. However, the amount has been paid by the appellants mistakenly believing that the same was payable and they have also taken the credit of th .....

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