Cce, Allahabad (U.P.) Vs. M/S. Ankur Udyog Ltd. - Court Judgment

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CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided OnMay-11-2010
Case NumberAppeal No.E/885 of 2008 & E/CO/274 of 2008-SM Branch
Judge THE HONOURABLE MR. M. VEERAIYAN, MEMBER (TECHNICAL)
AppellantCce, Allahabad (U.P.)
RespondentM/S. Ankur Udyog Ltd.
Advocates:Shri R.K. Saini, JDR. Shri Keshav Maloo, Chartered Accountant.
Excerpt:
per m. veeraiyan: appeal no.e/885 of 2008 is by the department against the order-in-appeal no.213-ce/alld/2007 dated 22.12.2007. cross objection no.e/274 of 2008 is connected to this appeal. 2. heard both sides. 3. the respondents are manufacturer of yarn and are availing cenvat credit on inputs services. the respondents are availing services of gta in respect of goods despatched by them. in respect of the said gta services, they as recipients, are required to pay service tax in terms of rule 2(1)(d)(v) of the service tax rules, 1994. show cause notices were issued proposing to disallow the use of cenvat credit in paying service tax on the said gta services. the original authority dropped the proceedings. on appeal by the department, the commissioner (appeals), upheld the order of the original authority and rejected the appeal of the department. the department has shown perseverance and filed this appeal against the concurrent findings of the original authority and the commissioner (appeals). 4. ld. dr reiterates the grounds of appeal. the appeal is on the ground that the respondent is not a provider for gta services and hence can not use cenvat credit for the tax. 5. ld. chartered accountant strongly supports the orders of the authorities below. he also clarifies that the cross objection is basically submissions against the grounds of appeal taken by the department. ld. chartered accountant also relies upon the following judgements:- 1. cce, chandigarh vs. nahar industrial enterprises ltd. 2007 (7) str 26 (tribunal-delhi) 2. ambattur petrochem ltd. vs. cce, raipur 2008 (9) str 53 (tribunal-delhi) 3. mahindra ugine steel co. ltd. vs. cce, raigad 2009 (13) str 373 (tribunal-mumbai) 4. andhra pradesh paper mills ltd. vs. cce, visakhapatnam-ii 2007 (8) str 166 (tribunal-bang.) 6. i have carefully considered the submissions from both the sides and perused the records. the respondent, undisputedly, is required to pay the service tax as if provider of the gta services. this matter as to whether cenvat credit can be utilised for paying the service tax in such a situation is already settled in favour of the assessee as in the case of andhra pradesh paper mills ltd. cited supra. therefore, i hold that the respondent has rightly utilised the cenvat credit for paying service tax on the gta services for which they were required to pay the service tax as the recipient of the services. 7. the appeal of the department against the concurrent findings of the authorities below is rejected. the cross objection is also disposed of.
Judgment:

Per M. Veeraiyan:

Appeal No.E/885 of 2008 is by the Department against the Order-in-Appeal NO.213-CE/ALLD/2007 dated 22.12.2007. Cross objection No.E/274 of 2008 is connected to this appeal.

2. Heard both sides.

3. The respondents are manufacturer of yarn and are availing Cenvat Credit on inputs services. The respondents are availing services of GTA in respect of goods despatched by them. In respect of the said GTA services, they as recipients, are required to pay service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994. Show cause notices were issued proposing to disallow the use of Cenvat Credit in paying service tax on the said GTA services. The Original Authority dropped the proceedings. On appeal by the Department, the Commissioner (Appeals), upheld the order of the Original Authority and rejected the appeal of the Department. The department has shown perseverance and filed this appeal against the concurrent findings of the Original Authority and the Commissioner (Appeals).

4. Ld. DR reiterates the grounds of appeal. The appeal is on the ground that the respondent is not a provider for GTA services and hence can not use Cenvat Credit for the tax.

5. Ld. Chartered Accountant strongly supports the orders of the authorities below. He also clarifies that the cross objection is basically submissions against the grounds of appeal taken by the Department. Ld. Chartered Accountant also relies upon the following judgements:-

1. CCE, Chandigarh Vs. Nahar Industrial Enterprises Ltd. 2007 (7) STR 26 (Tribunal-Delhi)

2. Ambattur Petrochem Ltd. Vs. CCE, Raipur 2008 (9) STR 53 (Tribunal-Delhi)

3. Mahindra Ugine Steel Co. Ltd. Vs. CCE, Raigad 2009 (13) STR 373 (Tribunal-Mumbai)

4. Andhra Pradesh Paper Mills Ltd. Vs. CCE, Visakhapatnam-II 2007 (8) STR 166 (Tribunal-Bang.)

6. I have carefully considered the submissions from both the sides and perused the records. The respondent, undisputedly, is required to pay the service tax as if provider of the GTA services. This matter as to whether Cenvat credit can be utilised for paying the service tax in such a situation is already settled in favour of the assessee as in the case of Andhra Pradesh Paper Mills Ltd. cited supra. Therefore, I hold that the respondent has rightly utilised the Cenvat credit for paying service tax on the GTA services for which they were required to pay the service tax as the recipient of the services.

7. The appeal of the Department against the concurrent findings of the authorities below is rejected. The cross objection is also disposed of.