TMI Blog2018 (4) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Rules only refers to availing of Cenvat Credit and not utilization of cenvat credit. The restriction to utilize the cenvat credit came into Cenvat Credit rules by inserting explanation in rule 3 (4) vide N/N. 28/2012 – CE (NT) dt. 20.06.2012 which says that CENVAT credit cannot be used for payment of service tax in respect of services where the person liable to pay tax is the service recipient - before 20.06.2012 there was no restriction upon the deemed service provider to pay the service tax liability from cenvat credit. The appellant is a person liable to Service Tax. Once appellant is person liable to service tax, he becomes provider of taxable service under Rule 2(r) and consequently becomes output service provider under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in terms of proviso to Section 73 (1) 75 of the Finance Act, 1994 and to impose penalty in terms of Section 76,77 and 78 of the Finance Act, 1994. The adjudicating authority vide impugned order confirmed the demand. Hence the present appeal. 2. Shri M.P. Baxi, ld. Advocate appearing for the Appellant submits that they have correctly discharged their service tax liability from Cenvat credit. He submitted that the treatment of the recipient of service as Deemed Service Provider under section 66A is only for the purpose of charging service tax on taxable service received from outside India. The services provided from outside India and received in India therefore cannot be treated as taxable service provided by the recipient for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 (42) taxmann.com (396) in this regard. That the demands are hit by time bar as they have been filing service tax returns showing the payment of taxes from cenvat account. Further that the show cause notice was issued after 2 years of the audit by the revenue. He submits that since there is no suppression, the penalty imposed upon them is not sustainable. 3. Shri Rishi Goel, ld. Additional Commissioner (AR) appearing for the revenue supports the findings of the impugned order. He relies upon Tribunal s order in case of Morarjee Textiles Ltd. 2016 (46) STR 169 (TRI), Sangam (India) Ltd. 2012 (278) ELT 277 (TRI), State of Gujarat Fertilizer Chem. Ltd. 2012 (289) ELT 348 (Cal.), Vanguard Fire and Gen. Ins. 1960 (3) SCR 857. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x liability from cenvat credit. The Tribunal in the case of M/s Kansara Modler Ltd. 2013 (32) STR 209 (TRI) has allowed the utilization of credit. The relevant portion of the order is as under : 4. We find in this case contention of Revenue is that appellant is a recipient of services and cannot be treated as provider of output service. Hence appellant cannot utilize Cenvat account for payment of service tax on services received from abroad. On the other hand appellant claims that they are provider of output service as per-definitions under Rule 2(p), Rule 2(q), Rule 2(r) of the Cenvat Credit Rules read under Rule 2(1)(d)(iv) of Service Tax Rules, 1994. 5. For sake of convenience we reproduce these Rules below :- (i) Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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