Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 919 (BOM)

Commissioner Of Central Excise And S. t. , Mumbai v. Reliance Industries Ltd.

2018-04-02

PRAKASH D.NAIK, S.C.DHARMADHIKARI

body2018
ORDER S.C. Dharmadhikari, J. - Having heard both sides, by consent, the appeal is admitted on the following substantial question of law : Whether the assessee is eligible to utilize Cenvat credit accumulated on account of manufacturing activities for the payment of service tax payable as a recipient under the category of ''Goods Transport Agency'' during the period April, 2007 to March, 2008 i.e. after amendment of Rule 2(p) of Cenvat Credit Rules, 2004 vide Notification No. 8/2006-C.E. (N.T.), dated 19-4-2006, OR should have discharged the service tax liability in cash?" 2. The appeal is directed against the order of the Tribunal dated 29th May, 2015. 3. In a short cryptic order, the Tribunal has disposed of the subject appeal challenging the appellate order of the Commissioner of Central Excise and Service Tax (Appeal), Mumbai, dated 21st December, 2009. The impugned order of the Tribunal reads as under : 3. Heard Both sides and perused the record. 4. The issue involved in this case is regarding the utilisation of Cenvat Credit for discharge of service tax liability on the Goods Transport Agency Service during the period May, 2007 to September, 2008. 5. Ld. Counsel was correct in bringing to our notice that the issue is now finally settled by the Larger Bench of the Tribunal in the case of Panchmahal Steel Ltd. - 2014 (34) S.T.R. 351 (Tri.-LB) wherein one of us was a Member. It is also brought to our notice that Revenue had challenged this Larger Bench decision before the Hon''ble High Court of Gujarat. The Hon''ble High Court by an order dated 18-12-2014 [reported in 2015 (37) S.T.R. 965] dismissed the appeal filed by the Revenue holding that the Larger Bench decision was correct decision. Their Lordship had recorded as under :- "8. Rule 3 of the Cenvat Credit Rules, 2004 pertains to Cenvat Credit. Sub-rule (1) thereof allows the manufacturer or purchaser of final products or provider of output service to take credit of Cenvat Credit of various duties specified therein. Sub-rule (4) of Rule 3 of the said Rules provides that the Cenvat credit may be utilized for payment of various duties specified in clauses (a) to (e) thereof; clause (e) pertains to "Service Tax on any output service". Sub-rule (4) of Rule 3 of the said Rules provides that the Cenvat credit may be utilized for payment of various duties specified in clauses (a) to (e) thereof; clause (e) pertains to "Service Tax on any output service". A combined reading of these statutory provisions would, therefore, established that though the assessee was liable to pay Service Tax on G.T.A. Service, it could have utilized Cenvat credit for the purpose of paying such duty. In view of the decisions of Punjab and Haryana High Court and Delhi High Court noted above, we do not find any error in the view of the Tribunal. Tax Appeal is, therefore, dismissed." 6. As law is now settled for the material period in question, we find that the impugned orders are liable to be set aside and we do so. 7. The impugned orders are set aside and the appeals are allowed with consequential relief, if any." 4. It is contended before us that the period in the present case is April, 2007 to March, 2008. 5. Secondly, the judgment of the Larger Bench of the Tribunal, referred in the impugned order, concerns a prior period, namely, 1st January, 2005 to 31st March, 2006. Finally, the Tribunal could have examined the matter in the light of the fact that there is no judgment of the jurisdictional High Court and/or otherwise. It is only in the absence of a view taken by either the Hon''ble Supreme Court of India or the jurisdictional High Court that the Tribunal could have followed the view taken by the other High Courts. In the present case, in Paragraph 5, it has not been held that, besides the Hon''ble High Court of Gujarat, any view has been taken by the jurisdictional High Court. In the circumstances, and because the order is cryptic, we are constrained to quash and set aside the same. It is, accordingly, quashed and set aside. 6. The appeal shall now be reheard by the Tribunal on its own merits and in accordance with law, totally uninfluenced by any earlier conclusions. The Tribunal must express an opinion with regard to the amendment made by the Legislature and whether that renders ineffective any binding judicial orders. In other words, the effect of the amendment is to wipe out the basis of the earlier judicial orders or otherwise. We keep open all contentions in relation to this controversy. The Tribunal must express an opinion with regard to the amendment made by the Legislature and whether that renders ineffective any binding judicial orders. In other words, the effect of the amendment is to wipe out the basis of the earlier judicial orders or otherwise. We keep open all contentions in relation to this controversy. 7. No order as to costs.