TMI Blog2019 (6) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... n him in terms of Section 66A - In terms of Rule 2 (r) the Appellant is a deemed service provider. Rule 5 of Taxation of Service Rules (Provided from outside India and Received in India) Rules only refers to availing of Cenvat Credit and not utilization of cenvat credit. Utilization of credit is not incorrect - appeal allowed - decided in favor of appellant. - Appeal No. ST/85740/2014 - A/86001/2019 - Dated:- 31-5-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Ms. Prajakta Menezes, Advocate with Shri Arihant Taler, C.A., for the Appellant Shri M.K. Sarangi, Authorised Representative for the Respondent ORDER PER: DR. D.M. MI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it balance available with them in discharging their service tax liability as service recipient. The provisions of availment and utilization of cenvat credit are governed by Cenvat Credit Rules, 2004 and Rule 3(4) of the said Rules prescribes that cenvat credit may be utilized for payment of service tax on any output service. The meaning of output service has been provided under Rule 2(p) of the said Rules, which covers any taxable service provided by the provider of taxable service. Rule 2(r) of the Cenvat Credit Rules defines provider of taxable service to include the person liable for paying the service tax. Further, she has submitted that in terms of Rule 2(q) of the Cenvat Credit Rules, 2004, a person liable for paying service tax has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler Ltd. vs. CCE, Jaipur-II 2013 (32) STR 209 (Tri.-Del) affirmed by the Hon ble Rajasthan High Court reported as UOI vs. Kansara Modlers Ltd. - 2018 (8) TMI 1230 (Raj HC); (iv) Welspring Universal vs. CST, Delhi - 2017 (5) TMI 1198 CESTAT NEW Delhi); (v) Sangam (India) Ltd. vs. CCE, Jaipur - 2017 (5) TMI 45 CESTAT NEW DELHI. The learned Advocate further submitted that only with effect from 1st July 2012, in the definition of output service , specifically excluded the services wherein the liability to pay is cast on the recipient of the service. The said amendment cannot be construed as retrospective or clarificatory in nature. She has further submitted that invoking of extended peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided from outside India and received in India) Rules, 2006. It is his contention that there is no other Tribunal decision cited on the issue raised by the appellant. He has submitted that if the said decision is taken to its logical conclusion even in cases of GTA, the recipient would be treated as provider of output service only on the ground that he is liable to pay service tax as per Rule (q) read with Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, and the observation of the Tribunal would render Rule 2(b), (q) and (r) of the Cenvat Credit Rules nugatory. It is his contention that the amendment carried out to Rule 2(p) of the Cenvat Credit Rules, 2004 with effect from 01.03.2008 was to give way to the provisions of Rule 2(q) and (r) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready been considered by this Tribunal in the case of USV Ltd. s case (supra). This Tribunal considering similar type of argument and referring to the ratio laid down in Kansara Modler Ltd s case (supra), observed as follows:- 4. Heard both the sides and perused the records. We find that under Cenvat Credit Rules, 2004 there is no bar for utilization of Cenvat credit for the deemed service provider to pay the service tax liability casted upon him in terms of Section 66A. In terms of Rule 2 (r) the Appellant is a deemed service provider. Rule 5 of Taxation of Service Rules (Provided from outside India and Received in India) Rules only refers to availing of Cenvat Credit and not utilization of cenvat credit. Further the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly; (ii) Rule 2(q) - person liable for paying service tax has the meaning as assigned to it in clause (d) of sub-rule (1) of Rule 2 of the Service Tax Rules, 1994; (iii) Rule 2(r) - provider of taxable service include a person liable for paying service tax; Rule 2(1)(d)(iv) of Service Tax Rules. (iv) in relation to any taxable service provided or to be provided by any person from a country other than India and received by any person in India under section 66A of the Act, the recipient of such servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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