Per S.K. Gaule:
Heard both sides.
2. Revenue is in appeal against the Commissioner (Appeals) order No. 343-344(HKS)CE/JPR-II/2007 dated 4.6.2007 whereby Commissioner (Appeals) while relying upon the Tribunal’s decision in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd. reported in 2007 (7) STR 26 (Tr-Del.) rejected the Department’s appeal filed against the order in original dated 30.3.2007 vide which the demand of service tax of Rs.739668/- was confirmed along with interest and penalty of Rs.1000/- under Section 77 of the Finance Act, 1994 was imposed.
3. The respondents are engaged in the manufacture of man-made yarn of synthetic and artificial staple fibre falling under Chapter 55 of the CETA, 1985. They were also registered under Section 69 of the Finance Act, 1994 as Goods Transport Operator. They have utilised the cenvat credit earned on various inputs, capital goods and service tax paid on input service. The Department sought to disallow the credit so availed and utilised on the ground that the same cannot be utilised for payment of GTA services. The lower adjudicating authority accordingly confirmed the proposal in the show cause notice. The Commissioner (Appeals) set aside the impugned order in original. Hence the appeal.
4. The contention of the appellant is that the ld. Commissioner (Appeals) has set aside the lower adjudicating authority’s order while relying on the Tribunal’s decision in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd (supra) and they are still having time to file appeal against the aforesaid decision and therefore, to protect the interest of revenue, they have filed appeal before the Hon’ble Tribunal. In support of their contention they placed reliance on definitions of capital goods, input and private taxable service etc. They also place reliance on Hon’ble Tribunal decision in the case of C.C.E., Raigad vs. Santogen Exports reported in 2009 (120) ELT 530 (Tri-Mumbai).
5. I find that there is no dispute that the respondent has earned cenvat credit on inputs, capital goods and input service. There is no allegation of the Department that the said cenvat credit included credit of service tax paid on GTA service. Commissioner (Appeals) has set aside the lower adjudicating authority’s order while relying upon the decision of the Tribunal in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd. The appellant failed to submit any evidence that the said decision has either been stayed or reversed. The Tribunal’s decision cited by the appellant in the case of Commissioner of Central Excise Raigad vs. Santogen (supra) relates to cenvat credit of service tax paid on GTA service and utilised for output GTA services and is not relevant to the instant case. Commissioner (Appeals) order does not suffer from any infirmity. Therefore, I do not have any reason to interfere with the same. The Order- in - Appeal is upheld and the appeal is dismissed.