TMI Blog2023 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... g Service is not taxable but the appellant have admittedly paid the service tax and the same was accepted by the department as no objection was raised regarding the payment of service tax. In this fact, when the appellant has paid the service tax, the input service credit is admissible. The appellant have paid more amount of service tax as against the input tax credit, therefore, there is revenue neutral situation in the present case, however, this worksheet was given first time before this Tribunal which needs to be verified - As regard, the Cenvat credit in respect to the input service used in the non taxable output service on which the service tax paid this Tribunal has considered the issue in GATEWAY DISTRIPARKS LTD. VERSUS COMMISSIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export Cargo? (iii) Whether present Show Cause Notice is time barred or otherwise: (iv) Whether the penalties under Section 76 of Finance Act, 1994 and Section 78 ibid are imposable? 2. The brief facts of the case are that the appellant are engaged in providing the export Cargo Handling Service during the period June-2005 to September-2005. They have paid the Service Tax on such services and have availed Cenvat credit of the Service Tax paid on relevant input services. The case of the department is that, as per the definition of Cargo Handling Service as defined as Clause (23) of Section 65 of the Finance Act, 1994. The Cargo Handling of export is excluded from the definition of Cargo Handling Service. Accordingly, it is the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be twenty-five per cent of the penalty imposed above. The benefit of reduced penalty shall be available only if the amount of penalty so determined has also been paid within thirty days from the receipt of this order. (iv) I impose penalty on the Noticee, M/s. Gautam Freight Private Limited, Gandhidham, under section 76 of the Finance Act. 1994 and accordingly order that the Noticee shall pay in addition to service tax payable upto 09.05.2008, out of the amount of service tax confirmed at Sr. No. (1) above, and interest on that tax amount in accordance with the provisions of section 75 ibid, as ordered at Sr. No. (ii) above, penalty (a) For the service tax due and confirmed for the period upto 17.04.2006 at the rate of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission, he placed reliance on this Tribunal s decision in the case of GATEWAY DISTRIPARKS LTD Vs. COMMISSIONER OF C. EX., RAIGAD-2019 (28) G.S.T.L. 135 (Tri.-Mumbai). 4. On the other hand, Shri. Ghanasym Soni, learned Joint Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the finding of impugned order. He submits that the Cenvat credit on the input service is allowed only when the same is used on output service. In the present case the Cargo Handling of export cargo does not fall under the taxable service, therefore, the condition of the Cenvat Credit Rules is not complied with, accordingly, the appellant have wrongly availed the Cenvat Credit. In support, he placed reliance on the following Judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, this worksheet was given first time before this Tribunal which needs to be verified. As regard, the Cenvat credit in respect to the input service used in the non taxable output service on which the service tax paid this Tribunal has considered the issue in the below judgment:- Gateway Distriparks Ltd_Vs. CCE, Raigad-2019 (28) GSTL (135) (Tri.,- Mumbai) 6. We are of the view that the matter needs to be re considered in the light of the above observation as well as the judgment on the identical issue. Accordingly, we set aside the impugned order and remand the matter to the adjudicating authority for passing a fresh order. The appeal is allowed by way of remand to the adjudicating authority. (Pronounced in the open court on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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