IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 2237 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= COMMISSIONER OF CENTRAL EXCISE & CUSTOMS - Appellant(s) Versus BANCO ALUMINIUM LTD - Opponent(s) ========================================================= Appearance :
MR GAURANG H BHATT for Appellant(s) : 1, RULE SERVED for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 19/06/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) We have heard Mr. Gaurang Bhatt, learned counsel appearing for the Central Excise and Customs Department in this Tax Appeal. Inspite of service, no one has put in appearance on behalf of the respondent. This Tax Appeal was admitted on the following question of law:
“Whether the Tribunal below committed substantial error of law in holding that the respondent had paid service tax on `input service' by way of utilization of cenvat credit despite the fact that as per Rule 3(4) (e) of the Cenvat Credit Rules, 2004, the utilization of payment of service tax is available on `output service'”
2. The question is whether for input service cenvat credit can be utilized by the respondent or not. In the impugned order, the Tribunal has relied on various judgments rendered by it, wherein it has been held that for input service also cenvat credit can be utilized. Learned counsel for the appellant has urged that cenvat credit can only be utilized as per Rule 3(4)(e) of the Cenvat Credit Rules, 2004 for an output service. The Tribunal by its judgment dated 25.02.2008 has held that the law has been settled by various decisions of the Tribunal. The order of the Tribunal is extracted below:-
“The short issue involved in the present appeal is as to whether the appellant, who is liable to pay service tax in respect of GTA services availed by him can utilize the credit earned by him on the inputs other services for payment of such service tax or the said tax is required to be paid in cash.
2. The issue is no more res integra and stands settled by the following decisions of the Tribunal:
1. M/s. Ambuttur Petrochem Ltd. and others vs. CCE, Raipur 2007 TIOL 1047 CESTAT – Del
2. CCE, Chandigarh Vs. Nahar Industrial Enterprises Ltd. - 2007 (7) STR 26 (Tri.Del.)
3. India Cements Ltd. Vs. CCE, Salem – 2007(7) STR 567 (Tri- Chennai)
4. CCE, Nagpur vs. Visaka Industries Ltd. - 2007(8) STR 231 (Tri.-Mumbai).
3. The law declared by the above decisions that the service tax required to be paid by the recipients on the goods transport agency services can be paid from the modvat credit account. In view of the above, I set aside the impugned order and allow the appeal with consequential relief to the appellant”
3. Learned counsel for the appellant has placed reliance on the instructions of the Board dated 03.10.2005, which has clarified Section 68(2) of the Finance Act, 1994. These instructions of the Board are not relevant for the purpose of deciding this Tax Appeal. For the aforesaid reasons, no substantial question of law arises, and accordingly the Tax Appeal is dismissed.
(V.M. SAHAI, J.) (N.V. ANJARIA, J.) (SN DEVU PPS)