Custom, Excise & Service Tax Tribunal
M/S. Hitech Carbon vs Commissioner Of Central Excise on 13 March, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. 384 of 2008
[Arising out of Order-in-Appeal No. 10/ST /ALLD/2008 dated 29.2.2008 passed by the Commissioner of Customs, Central Excise & Service Tax , Allahabad ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, Member (Technical)
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 :
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair :
copy of the Order?
4. Whether Order is to be circulated to the :
Departmental authorities?
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M/s. Hitech Carbon. Appellants
Vs.
Commissioner of Central Excise Respondent
Allahabad
Appearance:
Shri B.L. Narasimhan, Advocate for the Appellants
Shri K.P. Singh, DR for the Respondent
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, Member (Technical)
Date of Hearing/decision : 13.03.2012
ORAL ORDER NO . ________________________
Per Archana Wadhwa (for the Bench):
The short issue involved in the present appeal is as to whether the appellant is entitled to discharge his Service Tax liability in respect of goods Transport agency services from the Cenvat account during the period February, 2005 to May, 2006. The demands stands confirmed against the appellant on the ground that such utilisation of Cenvat credit for payment of Service Tax was not proper and the Service Tax was required to be paid in cash.
2. We find that the issue is no more res integra and stands settled by the Honble Punjab & Haryana High Court decision in the case of Commissioner of Central Excise Chandigarh vs. Nahar Industrial Enterprises Ltd. and others [2011 (104) RLTONLINE 3 (P&H)]. In a recent decision, the Honble High Court of Himachal Pradesh, by relying upon the Punjab & Haryana High Court judgement has also held in favour of the assessee in the case of Auro Textile [2012(276) ELT A 096(P&H)]. As such, we find that during the period relevant up to 18.4.06, the appellant was entitled for using the Cenvat credit for payment of Service Tax on GTA services.
3. However, when there were amendments in law w.e.f. 18.4.06, and learned advocate Shri Narasimhan fairly agrees that the Service Tax after the said date is required to be paid in cash. As such, he agrees to pay the tax in cash subject to reversal of credit already utilised by them. He also agrees that the interest will be payable during the relevant period. In view of the above, we direct the applicant to pay the Service Tax for the period with effect from 18.4.06, in cash along with interest. The credit already utilised by them would be recredited to their account.
4. As regards Penalty, we find that the issue was covered in their favour by various decisions of the Tribunal as also by Honble Punjab & Haryana High Court referred supra. Amendment in law with effect from 18.4.06 for the period May, 2006 should not attract any penalty even though the appellant is liable to pay in cash with effect from 18.4.06 inasmuch as there was no mensrea and the liability to pay in cash has arisen on account of Amendment in the provisions. We accordingly set aside the penalty. Appeal is disposed of in the above terms.
(Pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
( Mathew John ) Member(Technical)
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