Case Law Details
Whether a person who is not actual service provider, but discharges the Service tax liability on the Taxable Services, under Section 68(2) of the Finance Act, 1994, as a deemed service provider, is entitled to avail the Cenvat Credit on inputs/inputs services/Capital Goods for payment of GTA Services tax, even if he is not using such inputs/input services/capital goods for providing taxable services? Counsel for the revenue fairly states that the matter is covered against the revenue by order of this Court dated 6.5.2010 in CEA No.99 of 2008 CCE v. M/s Nahar Industrial Enterprises Ltd. etc. Appeal Dismissed
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CEA No. 285 of 2010 (O&M)
COMMISSIONER OF CENTRAL EXCISE
Vs
M/s. NAHAR SPINNING MILLS LTD.
Dated: April 07, 2011
JUDGEMENT
Per: Adarsh Kumar Goel:
This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (for short, “the Act”) against the order of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 11.3.2010, Annexure A-4, proposing to raise following substantial question of law :-
“Whether a person who is not actual service provider, but discharges the Service tax liability on the Taxable Services, under Section 68(2) of the Finance Act, 1994, as a deemed service provider, is entitled to avail the Cenvat Credit on inputs/inputs services/Capital Goods for payment of GTA Services tax, even if he is not using such inputs/input services/capital goods for providing taxable services?”
Learned counsel for the revenue fairly states that the matter is covered against the revenue by order of this Court dated 6.5.2010 in CEA No.99 of 2008 CCE v. M/s Nahar Industrial Enterprises Ltd etc.
Accordingly, this appeal is dismissed.
Amended Rule 3 (4) says that:
“(4) The CENVAT credit may be utilized for payment of –
(a) any duty of excise on any final product; or
(b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or
(c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or
(d) an amount under sub rule (2) of rule 16 of Central Excise Rules, 2002; or
(e) service tax on any output service:”
Now definition of Output Service has been amended w.e.f. 1.03.2008. As per Rule 2(p) of CENVAT Credit Rules, 2004:
(p) “output service” means any taxable service, excluding the taxable service referred to in sub-clause (zzp) of clause (105) of section 65 of the Finance Act, provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions ‘provider’ and ‘provided’ shall be construed accordingly;
(Substituted vide Notification No. Notification 10/2008 C.E. (N.T.) – dated 01-03-2008 w.e.t. 01-03-2008)”
Hence w.e.f. 1.3.2008 CENVAT could not be utilised for payment of Service Tax on GTA.