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TMI Blog2025 (5) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,20,560 on Rent a cab service; wrongly availed Cenvat credit of Rs. 2,56,423 on Swachh Bharat Cess and Rs. 5,73,464 on Rent a Cab service along with interest and penalty. The Original Authority vide Order-in-Original, dated 18.05.2020, confirmed the demands raised. On an appeal filed by the Learned Commissioner (Appeals) vide impugned order dropped the demands raised, except on an amount of Rs. 1,46,316 on account of credit availed on Swachh Bharat Cess, on merits and limitation. Hence, this appeal filed by the Revenue. 3. Shri A.K. Chaudhary, Authorized Representative for the Revenue reiterates the grounds of appeal. Which are as follows, in brief * Commissioner (Appeals) wrongly held that the show cause notice is barred by limitation. Commissioner ignored the judgment of Hon'ble High Court of Madras in the case of Maruti Plastics reported in 2019 (367) ELT 43 (Mad.) * Commissioner erred in observing that the appellant was right in not discharging service tax under reverse charge mechanism when the service provider themselves have paid the tax. He should have followed the decision of the Hon'ble Supreme Court in the case of Dharampal Satyapal 2005 (183) ELT 241 (SC) and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner (Appeals) has given a reasoned order. The Relevant paras are as under: "6.1 Regarding sustainability of demand of service tax, on merits, I find that in respect of the manpower recruitment services, on the RCM basis, the appellant has contended that the adjudicating authority has travelled beyond the show cause notice in as much as in the SCN the demand was raised under Manpower Recruitment Agency Service whereas the demand has been confirmed under Manpower Supply Services. In this regard, I find that the Services namely Manpower Recruitment Agency Service, and Manpower Supply services were not defined under separate heads but defined under single head "Manpower Recruitment or Supply Agency" under Section 65(68) of the Act and covered under the category of taxable service under Section 105(k) of the Act. Further, the SCN was issued to the appellant for the period from April, 2014 to June, 2017 when no specific classification of service was available under the law. During the said period all the services, except specifically listed under Section 66D of the Act or otherwise exempted by virtue of notifications issued by the government were taxable. Therefore, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce providers and had adduced any evidence regarding no-payment of service tax by the service providers. I find that the demand was made only on the ground that the appellant was required to pay service tax on RCM basis but without refuting the contention of the appellant or adducing any evidence that the service tax so demanded already stood paid by the service providers. Under the circumstances, I hold that once the services tax was paid by the service providers the same was not demandable again from the appellant the service recipient as the same would amount to double taxation which was not permissible under law. The Hon'ble Tribunal, Ahmedabad in the case of Transpek Silox Industries (P) Limited vs. Commissioner of Central Excise, Vadodara-l [2018(17)GSTL 434( Tri-Ahnd)] has held that- "Demand - Manpower Recruitment or Supply Agency Service - Reverse Charge -Double Taxation - Under Notification No. 30/2012-S.T., service provider required to pay 75% of Service Tax while recipient balance 25% under reverse charge-Since instant case, service recipient has discharged 100% Service Tax, demanding 75% tax from appellant service provider amounting to double taxation, which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as failed to adduce any evidence to the contrary before raising the demand. I further find that the appellant along with the memo of appeal also submitted some invoices of M/s Mehra Ram & Sons evidencing that the service tax was assessed by the service provider at full rate and charged to the appellant. There was no evidence whatsoever to draw any contrary inference. It was, therefore, evident that the raising of the demand of the service tax and the confirmation of the same vides impugned order was done without any supporting and sustainable piece of evidence. I find that the Board vide Circular F. No. 341/18/2004-TRU (Pt.), dated 17-12-2004 has clarified that - "If Service Tax due on transportation of a consignment has been paid or is payable by a person liable to pay Service Tax, Service Tax should not be charged for the same amount from any other person, to avoid double taxation." Further the Hon'ble CESTAT, Mumbai in the case of M/s Umasons Auto Component Pvt. Limited versus Commr. "of C. Ex. &Cus., Aurangabad reported as [2017 (47) S.T.R. 377 (Tri. - Mumbai)] has held that - "Goods Transport Agency service - Demand - Recipient liability - Service Tax paid by service pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition given under Rule 2 (l) of CCR. In this regard the appellant has contended that out of the total amount of Rs.5,73,464/- the amount Rs. 3,80,413/- was related to tax paid invoices of M/s Mehra Rarg Chaudhary, and the remaining amount of Rs. 1,93,051/- was related to the services provided by M/s ND Sharan Tour and Traders. The appellant has further submitted that on being pointed out by the department he had deposited the service tax of Rs. 1,90,530/- vide challan dated 29.04.2019 [Inclusive of Cess(s) and interest] which was the total amount of service tax liability for the normal period of. demand. In this regard I find that the appellant, along with memo of appeal, has submitted copies of the invoices issued by Ms. Mehra Ram Chaudhary, a perusal of which reveals that the service provider had assessed the service tax and charged the same to the appellant who in turn had taken Cenvat credit of the same. The service tax already paid by the service provider was not demandable again from the appellant /service recipient as the same would amount to double taxation which was not permissible under the law. Therefore, the demand of Rs. 3,80,413/- was not sustainable. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput service for the appellant as per definition given under Rule 2 () of CCR. The denial of the Cenvat credit was, therefore, not sustainable in the absence of any evidence to substantiate allegation of ineligibility of the Cenvat credit on the said service which was used by the appellant for making the transport arrangements of his employees in connection with the provision of his taxable output services. I find that as per the provisions of Rule 2(1) of CCR any service used in providing of output service or any activity relating to business is eligible for input credit. The Hon'ble Punjab and Haryana High Court decision in the case of Commissioner of Central Excise, Delhi-lii Versus Maruti Suzuki India Ltd. [2017(49) STR 261(P&H)] has held that: "Cenvat credit - Availment of - Rent-a-Cab services used by executives of assessee for traveling for business meetings, visits to dealerships, visits to vendor sites, dealers meet, business promotion activities, vehicles launch, conferences, etc. - HELD: This expenditure was related to business as it was incurred to promote sales and for efficient running of business Hence, assessee was entitled to avail Cenvat credit of Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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