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TMI Blog2017 (10) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal whereby the Tribunal has allowed the appeal of the assessee. 3. This Court while admitting the matters framed the following questions of law:- In DBITA No. 22/2011 & 27/2012 "Whether Section 68(2) of the Central Excise Act, 1994 read with Rule 6(2) of Service Tax rules, 1994 & Rule 3(4) of the Cenvat Rules, 2004 permit utilize of Cenvat Credit account for payment of Service Tax on Goods Transport Agency service during the relevant period of February, 2005 to September, 2006?" 4. Counsel for Respondent has relied upon the decision of Punjab & Haryana High Court in case of Commissioner of C. Ex. Chandigarh vs. Nahar Industrial Enterprises Ltd. reported in 2012(25) S.T.R. 129 (P & H) wherein it has been held as under:- "8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce for which he is liable to pay service tax by reason section 62(2) of the Finance Act, 1994 shall be deemed as "output service". Thus, while rule 2(1) and 2(p) cover two classes of persons, the recipient of GTA services, by virtue of the Explanation to rule 2(p) of the CENVAT Credit Rules, as a provider of output service, is entitled to all benefits that a person providing input service would be entitled to in the matter of CENVAT' credit adjustment. Thus, a reading of rules 2(1) and 2(p) would show that they cover two different situations and though their operations are totally different, yet, for the purpose of giving credit to the service tax payable from the CENVAT credit available, the recipient is also entitled to the same relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cenvat credit account. In Paragraphs 9 and 14 of the memorandum of petition, the petitioners have clearly stated the names of various parties in whose cases the Ahmedabad Commissionerate has permitted payment of excise duty from the Cenvat credit account. The petitioners have also stated that all over the country, EOUs are permitted to discharge the central excise duty foregone from the Cenvat credit account. Thus, on the ground of parity alone, the petitioners have made out a strong prima facie case, inasmuch as, when similarly situated assessees have been permitted to pay the excise duty foregone from the Cenvat credit account, there is no reason as to why the petitioners should be denied such benefit. Besides, the petitioner company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there appears to be no reason to deny such benefit to the petitioners. In the light of the above discussion, the court is of the view that the matter requires consideration. Hence, issue rule returnable on 17th December, 2015. By way of interim relief, subject to the final outcome of the petition, the petitioners are permitted to pay the excise duty foregone from the legally availed Cenvat credit account. Upon the excise duty being paid through the Cenvat credit account, the second respondent shall issue "No Due Certificate" to the petitioners for debonding out of 100% EOU Scheme." 5.2. He has relied upon the decision of Delhi High Court in case of Commissioner of Service Tax vs. M/s Hero Honda Motors Ltd. reported in 2013 (29) S.T.R. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter shall apply to such person as if he is the person liable for paying the service tax in relation to such service. In view of the specific reference to service tax and the benefit allowed to a service provider, read with the fiction created by Section 68(2) of the Finance Act, 1994, this Court is of the opinion that there is no ground to disagree with the judgment and reasoning of the Punjab and Haryana High Court in Nahar Industrial Enterprises Ltd. The appeal consequently fails and the question of law is answered in favour of the appellant and against the Revenue." 5.3. He has relied upon the decision of Himachal Pradesh High Court in case of Commissioner of Central Excise vs. Auro Spinning Mills & Ors. reported in 2012 (26) S.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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