M/S. Shv Lpg India Pvt. Ltd vs Commissioner Of Service Tax, Chennai

[Arising out of Order-in-Appeal No.23/2011 (M-ST), dated 08.03.2011 passed by the Commissioner of Central Excise (Appeals), Chennai ]

M/s. SHV LPG INDIA PVT. LTD. APPELLANT

Versus

COMMISSIONER OF SERVICE TAX, CHENNAI RESPONDENT

Appearance:

For the Appellant Shri N. Viswanathan, Adv.

For the Respondent Shri L. Paneerselvan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 12-08-2015

FINAL ORDER NO.

It is brought to the notice of the bench by learned counsel for the appellant that the law relating to treatment of tax paid on GTA service availed has undergone amendments after 16.04.2006. While the person paying service tax was considered as a taxable service provider and he was entitled to take credit of the service tax paid on GTA service availed, there was an amendment during the period 16.04.2006 conceptually which was applicable till 01.03.2008. Only after by the amendment came into force from 01.03.2008, the GTA service availed was not considered by legislature as output service. Accordingly, in absence of mandate to the contrary, for the intermittent period stated above, the appellant is entitled to claim GTA service availed as input service and service tax paid thereon is eligible for the Cenvat credit thereof to set off against output tax liability to avoid cascading effect. The credit so availed can be utilised.

2. Revenue on the other hand says that when the appellant had not provided output service it cannot enjoy the service tax paid on the GTA service availed.

2. Law is well settled that there is no one-to-one relationship in the Cenvat credit jurisprudence. This can be said following the apex court judgment in the case of Collector of Central Excise, Pune Vs Dai Ichi Karkkaria Ltd. reported in 1999 (112) E.L.T. 353 (S.C.). Once the credit is earned unless that is denied by law to set off, such right cannot be taken away. That right not being taken away during the transitory period 16.04.2006 to 01.03.2008, the appellant cannot be denied set off of the Cenvat credit.

3. Credit having been earned legitimately without any contrary finding by of Revenue, right to set off is undeniable. Accordingly, the appellant, in absence of any statutory mandate denying right to set off of the service tax paid as Cenvat credit cannot be put into adversity. Accordingly, appeal is allowed.

(Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 27-08-2015

DRAFT Remarks

I II III

Date of dictation 12.08.2015

Draft Order - Date of typing 14.08.2015

Fair Order Typing 27.07.2015

Date of number and date of dispatch

4 ST/00393/2011