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2015 (12) TMI 1565 - CESTAT ALLAHABAD

2015 (12) TMI 1565 - CESTAT ALLAHABAD - TMI - Whether the Cenvat Credit availed on manufacturing activity, can be utilized for discharging the deemed liability on payment made for technical know-how to the provider of service located outside India - Held that:- the issue is squarely covered by the precedent ruling of this Tribunal, in the case of Kansara Modler Ltd. Vs. CCE [2014 (1) TMI 1095 - CESTAT NEW DELHI], and the Hon’ble High Court of Punjab and Haryana in Nahar Industrial Pvt. Ltd. [201 .....

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I hold that the Ld. Commissioner (Appeals) is in error in not treating the appellant as output service provider. Therefore, the impugned orders are set aside. - Decided in favour of appellant - ST/52660-52661/2015 - Final Order No. 70610-70611/2016 - Dated:- 20-7-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Prashant Shukla Advocate for the Appellant (s) Shri Sanjay Hasija, Supdt., (A.R.) for the Department ORDER These appeals have been filed by the manufacturer-assessee against a common in .....

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nt) and paying excise duty thereon. The appellant has received technical know-how from an Austrian company in terms of agreement dated 18.06.2007 for its manufacturing activities. The appellant was of the view that supply of know-how is not exigible to service tax, being permanent transfer of IPR as per MOF DR Circular No.B2/8/2004-TRU dated 10.09.2004. When the Department had asked it to pay service tax on receiving of know-how being receiver of taxable intellectual property right service from .....

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f know-how by alleging that Cenvat credit had wrongly been utilized for payment of service tax on the service received because service received cannot be construed as output service as defined under the Rule 2(p) of the Cenvat Credit Rules, 2004. In the adjudication order, he had confirmed the demand by invoking the Rule 5 of Taxation of Services (Provided from outside India and Received in India) Rules, 2006 (in short Import of Service Rules ), though this rule was not invoked in the show cause .....

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aken of ₹ 26,61,438/-, as it appeared to Revenue that the appellant have not paid the service tax on import of service in cash, and have wrongly paid the same by debit to Cenvat Credit account. 5. The learned Counsel for the appellant has raised the following grounds among others, that the impugned order in appeal is cryptic and bad in law, as it ignores the rulings cited before him of this Tribunal in the case of Kansara Modler Ltd. Vs. CCE, 2013 (32) STR 209 and Final Order No.1218/2012 .....

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x liability on the output service. This Tribunal, in the case of Kansara Modler Ltd. (Supra.) held as follows:- 6. If we read Rule 2(q) of Cenvat Credit Rules wit Rule 2(1)(d)(iv), we find that appellant is a person liable to service tax, once appellant is liable to pay service tax he becomes provider of taxable service under Rule 2(r) and consequently becomes output service provider under Rule 2(p) of the Cenvat Credit Rules. Revenue is also relying on Rule 5 of Taxation of Services (Provided f .....

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