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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
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PJ/Case Laws/2012-13/1493

Whether Cenvat Credit utilization by GTA service recipient for payment of service tax legal?

Case:-COMMISSIONER OF SERVICE TAX  Versus  HERO HONDA MOTORS LTD.

Citation:- 2013(29) S.T.R. 358 (Del.)

Brief Facts:-In these appeals, the question which arises for consideration is whether the Tribunal fell into error in holding that in terms of Section 68(2) of Finance Act, 1994, the respondent was entitled to claim that it had paid or adjusted service tax dues on the basis of Cenvat Credit instead of cash. The brief fact is that respondent in this case was issued a show cause notice on 30-1-2006 proposing recovery of dues (including interest) and penal action in terms of Finance Act, 1994. The Revenue took action on the basis that the assessee had wrongly claimed to have paid service tax on goods transport agency under Section 68(2) of the said Finance Act, by adjustment of Cenvat credit instead of payment in cash. The Appellant contention is that the tax liability had to be discharged by cash and not through a claim of Cenvat credit. The Revenue also contended that the assessee was not a service provider but recipient of taxable service and that the Cenvat credit facility was only provided to a service provider but not to the recipient such as assessee. The adjudicatory authority by order dated 10-5-2006 confirmed the allegations made in the show cause notice and the claim for duty and imposed penalty. The respondent –assessee appealed to the Commissioner (Appeals). The latter, taking note of the provisions of Section 68(2)  and the legal fiction provided by it as well as decision of the Commissioner of Central Excise v. M/s. Nahar Industrial Enterprises Ltd. – 2007 (7) S.T.R.  186 (Tri.- Del.) and RRD Tex Pvt.Ltd. v. CCE, salem,2007 (8) S.T.R. 186 (Tri.- Chennai) held that assessee was entitled to the benefit of claiming payment of service tax on GTA services through adjustment of Cenvat credit . The appeal preferred by the Revenue to the CESTAT was rejected following the previous order in Nahar Industrial Enterprises; it also noticed other decisions on the same subject i.e. India Cements v. CCE, Salem, 2007 (7) S.T.R. 569 (Tri.); Bhushan Power & Steel Ltd. v. Visaka Industries Ltd, 2007(8) S.T.R. 231.

Appellant Contentions:- The Revenue claims to be aggrieved by the impugned order. It is stated at the outset that the view expressed by the Tribunal has been carried in appeal to the Supreme Court in Special Leave Petitions.

Respondent Contentions:-The respondent submitted that the Revenue had challenged the CESTAT’s order in Nahar  Industrial Enterprises  Ltd. (supra) before the Punjab and  Haryana High Court and advanced various contentions. The question of law framed by that High Court was identical to what was urged in the present case and the question framed thereon stands answered in favour of the assessee by the High Court.

Reasoning of Judgment:-The High Court relied on the following para of the order reported as CCE v. Nahar Industrial Enterprises Ltd,.2012 (25) S.T.R. 129:
“In the present case also, the service tax was paid out of Cenvat credit on GTA services and, hence, the respondents were well within their right to utilize the Cenvat credit for the purpose of payment of service tax. The commissioner (Appeal) as well as the Tribunal have rightly held that the respondents were entitled to pay the service tax from Cenvat credit.”
As is evident, the Punjab and Haryana High Court  had relied on Rule 3(4)(e) of the Cenvat credit Rules, 2004. The operative part of Rule 3(1) states that a manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit i.e. Cenvat credit in terms of its provisions.  Rule 3(4), to the extent it is material for the present purpose reads with and also reads with Section 68(1) and (2) of the Finance Act, 1994.” 
In view of the specific reference to service tax and the benefit allowed to a service provider, read with the fiction created by Section 68(2) of the Finance Act, 1994, this Court is of the opinion that there is no ground to disagree with the judgment and reasoning of Punjab and Haryana High court in Nahar Industrial Enterprises Ltd. The appeal consequently fails and the question of law is answered in favour of the appellant and against the Revenue.

Decision:-The appeal is dismissed.

Comment:-The question whether cenvat credit can be utilised for payment under reverse charge mechanism has been under constant litigation in view of divergent views expressed by court. This is yet another case favouring the contention of the assessee.  

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