Page 223 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMR. OF CENTRAL EXCISE, BHARUCH v. HINDALCO INDUSTRIES LTD. 405

mental authorities and the Tribunal, and indeed they would be un-
der a duty to grant that relief.”
7.6 We further find that in the case of Nitco Tiles Ltd. v. CCE, Mumbai
- 2007 (220) E.L.T. 827 (Tri. - Mum.), this Tribunal observed as under :-
“Further, the bar of unjust enrichment will also not apply in the pre-
sent case. The appellants have taken credit of the tax paid by them;
therefore the same cannot be said to be passed on to the customers.”
In these circumstances we hold that the Cenvat Credit taken by the
appellant is nothing but refund of the Service Tax paid by them on the
services on which they were not required to pay Service Tax.
8. With these observations, we hold that the appellant is entitled to
take the Cenvat Credit in the facts and circumstances of the case. Ac-
cordingly, the impugned order is set aside and the appeal is allowed
with consequential relief, if any.”
(ii) Sarda Energy & Minerals Ltd. (supra) has held as under-
“2. As per facts on record, the appellant had availed GTA services
during the month of December, 2004. However, as a recipient of such
services, they were liable to pay Service tax w.e.f. 1-1-2005. The appel-
lant paid the Service Tax in respect of the said services availed during
the month of December, 2004 and took the credit of the same. The
Revenue entertained a view that the services availed in December,
2004 were not taxable and as such, there is no liability on the part of
the appellant to pay the Service Tax. As a result, the credit of Service
Tax availed by them is not admissible to them.
5. I agree with the Learned Advocate that it is the credit of Service
Tax paid which is available to the assessee and not credit of Service
Tax payable. Admittedly the appellants have paid the Service Tax on
the GTA services availed during December, 2004 though they were
not liable to pay the same. Having paid the Service Tax, they are enti-
tled to the credit of the same. It is to be noted that no objection was
raised by the Revenue at the time of payment of Service Tax by the
appellant.”
(iii) Sterlite Industries (I) Ltd. (supra) has held as under-
2. During March 2006 to April 2006. the appellants entered into a
contract with the transport agencies to carry copper anodes from Tu-
ticorin to Sllvasa. For this period, the appellants paid Rs. 85.51,033/-
towards transportation charges to the transport agencies and on such
transport charges, as a service recipient, they paid service tax of
Rs. 2,25,702/-. The appellants subsequently took credit of the service
tax amount. During audit It was found that the transport of goods
was done in container by rail. It is the contention of the Department
that transport by rail was not liable for payment of service tax prior to
1-5-2006 and hence for the impugned period the appellants were not
eligible for taking service tax credit for the service which was not tax-
able.
5. It has not been contested by the appellants that service tax was not
payable in respect of rail transport. The Department has also proceed-
ed on the basis that rail transport service was not taxable prior to 1-5-
2006. Hence, the tax amount of Rs. 2,25,702/- which was paid by the
appellants was not at all due to the exchequer. However, the amount
EXCISE LAW TIMES  1st August 2020  223