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TMI Blog2024 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... der reverse charge basis but since, the service provider has paid the 100% service tax, the demand of service tax on the appellant is duplicacy of the demand and the same in any case will not sustain. He placed reliance on the judgment of this Tribunal in the case of Shah Foods Limited vs. CCE & ST- Ahmedabad-III 2024 (8) TMI 1405. 2.1 He submits that by impugned order even the demand of Cenvat credit was also confirmed on the Cenvat credit availed of service tax paid by the service provider on the ground that since the service provider is not supposed to pay the service tax, the said amount is not admissible as Cenvat credit. It is his submission that firstly, service tax was paid on the service which is taxable, even though, by the service provider the payment of service is correct and legal for this reason neither Cenvat credit can be denied nor the demand of service tax on the service which was already taxed can be demanded. 3. Shri H P Shrimali, Learned Superintendent (AR) appearing on behalf of the revenue, reiterated the findings of the impugned order. He placed reliance on the judgment of Delhi Tribunal in the case of Invincible Security vs. Commissioner of C. Ex. Noida 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit. We find that even though legally the appellant is liable to pay the service tax but in the facts of the present case the transport agency has admittedly paid such service tax. The assessment of payment of service tax by the transport agency has not been disputed by their jurisdictional officer, therefore no question can be raised as regard the service tax payment and assessment thereof at the end of the transport agency. If this be so, then the payment of service tax by the goods transport agency was made good as payment of service tax therefore, the demand against the appellant for the same service will amount to demand of service tax twice on the same service which in any case is not permissible. The Revenue is concerned about the service tax which the Government has already received, the same amount cannot be demanded twice. On the above fact, once the payment of service tax was made by the transport agency which has not been altered by taking any action by the department, the cenvat credit of the said amount is also rightly available to the appellant. In catena of case laws cited by the learned counsel, it has been held that even the service tax on GTA has been discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provider of GTA service and the provider has paid to the Revenue and the appellant has availed credit of the same. As the Service Tax has already been paid by the provider of GTA service and Revenue is demanding the same tax from the recipient. Therefore, the demand is not sustainable. The appellant also relies upon the decision of the Tribunal in the case of Navyug Alloys Pvt. Ltd. v. CCE & C, Vadodara-II reported in 2009 (13) S.T.R. 421 (Tri.-Ahmd.). 4. The Revenue relies upon the findings of the lower authorities and submitted that as per the provisions of the Finance Act, recipient is liable to pay Service Tax in respect of GTA service and if the same has been by the service provider, he can seek refund of the amount. 5. I find that there is no dispute regarding payment of Service Tax by the provider of GTA service. Once the amount of Service Tax is accepted by the Revenue from the provider of GTA service, it cannot be again demanded from the recipient of the GTA service. In view of this, the impugned order is set aside and the appeal is allowed" Transpek Silox Industries Pvt. Ltd. 2018 (17) GSTL 434 (Tri- Ahmd.) "The appellant is in appeal against the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall become double taxation against the appellant which is not permissible in the law. In that circumstance, the demand of Service Tax in terms of Notification No. 30/2012- S.T., dated 20-6- 2012 is not sustainable against the appellant. 7. In the result, the impugned order is not sustainable, therefore, the same is set aside, therefore, the appeal is allowed." Nagraja Printing Mills Vs. Commissioner of Central Excise, Salem2010 (19) STR 828 (Tri.-Chennai) "The assessees herein contend that the entire Service tax amount of Rs. 3,052/- confirmed against them on the ground that they were the 'consignee' and hence liable to pay Service tax on GTA services, has already been paid by the GTA to whom the assessees made payment along with freight. This submission is borne out by documentary evidence. The lower appellate authority before whom this plea was raised has not controverted the submission of payment of tax by the GTA. In the circumstances, I agree with the assessees that the present demand against them cannot be sustained, as it would amount to double payment, set aside the impugned order and allow the appeal." General Manager, J.K. Sugar Ltd. Vs. Commissioner of C. Ex., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reversal of the order of the learned first appellate authority. Learned Counsel support the order of the learned Commissioner (Appeals). 3. Heard both sides and perused the record. 4. There is no dispute that service in question has suffered tax. The only dispute is the person who shall pay the service tax. When the treasury has not been affected by virtue of collection of service tax from the service provider as is the case of the Revenue and there is no legal infirmity in the decision of the learned Commissioner (Appeals) there cannot be double taxation of same service. But it is fact that realization of the service tax has been made from the service provider while the recipient of service of GTA has liability under the law. Finding no loss of revenue, as has been held by the learned Commissioner (Appeals), Revenue's appeal is dismissed." 4.2 In view of the above judgments it has been settled that once the service provider discharged the service tax where the service recipient is liable to pay the service tax, demand of service tax on the same service from the service recipient shall not sustain on the ground that the particular service which already suffered the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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