TMI Blog2018 (2) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... is possible that the person liable to pay service tax may not be the service provider. If the Government intended to provide this facility to service recipient paying service tax on reverse charge basis the Government would have used the word person liable to pay service tax and not the word service provider. Section 68 (2) is a special mechanism for shifting part liability to pay service tax from service provider to service recipient but it does not convert in the service recipient into service provider - Rule 5B has no application in the appellants case. Appeal dismissed - decided against appellant. - E/86171 & 86173/16 - A/85198-85199/2018 - Dated:- 31-1-2018 - Mr. Raju, Member ( Technical ) Shri. M. D. Sathe, Consultant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness Auxiliary Service. 1.2 In the order-in-original holds that Sl.No. (a) to (d) of the above services, the appellant is registered as service recipient and discharging liability under reverse charge mechanism introduced vide Notification No.30/2012-ST dated 20/06/2012. The said notification provides that both the service recipient as well as service provider would pay part of the service tax. On the basis of above observation, the original adjudicating authority reaches a conclusion that the appellants are service receivers and not service providers in respect of services listed at Sl.No. (a) to (d) above. 1.3 The Commissioner (Appeals) in the impugned order has short listed the following questions to determine the disputes: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that the Government made a fiction. It has specifically been mentioned in sub Section (2) of Section 68 that the provision of whole Chapter V of the Finance Act, 1994 would be equally applicable to the service receiver as the said sub-section contains the words as if he is the person liable for paying tax in relation to such services. It was also argued that the fact that liability to pay service tax has been imposed on appellant vide Notification No.30/2012-ST, they becomes service providers. 3. I have gone through the rival submissions. I find that the issue regarding availability of credit has been dealt by the Hon ble High Court of Bombay in the case of Sharp Menthol India Ltd. - 2011 (270) ELT 212 and the same was maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the result, we hold that in the facts of the present case, since the exempted menthol crystals as well as dutiable peppermint oil manufactured out of duty paid menthol have been exported by the assessee, the provisions of Rule 6(1) to 6(4) of the 2004 Rules are not applicable and as per Rule 5 of 2004 Rules, the assessee was entitled to avail the Cenvat credit of duty paid on menthol used in the manufacture of exempted menthol crystals and utilize the said credit for payment of duty on clearance of peppermint oil either for home consumption or for export. In the present case, since the peppermint oil has been exported on payment of duty, the assessee was entitled to claim rebate of the duty paid on peppermint oil. 3.1 In the said d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of such service providers. The Commissioner (Appeals) has held that the provisions of Section 68 (2) which provides that the provisions of Chapter V of the Finance Act will apply to the service receiver as if he is the person liable for paying the service tax, does not make service recipient a service provider. It has been argued that Chapter V of the Act does not provide any modalities to convert a service recipient to service provider. I find that facility under Rule 5B has been provided subject to restrictions prescribed in Notification No.12/2014-CE(NT) dated 03/03/2014, the benefit of Rule 5 (b) is limited to service providers providing following services: i) Renting of a motor vehicle designed to carry passengers on no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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