1. This stay application is directed against the confirmation of demand of Rs. 4,67,139 and Education Cess Rs. 9,342 + interest at appropriate rate under section 75 of the Finance Act, 1994 and penalty of Rs. 14,36,383 under the provisions of section 76 read with section 78 of the Finance Act, 1994.

2. After hearing both sides for some time on the stay application, I find that the issue involved in this case is squarely covered by the various decisions of the Tribunal, hence after granting waiver the pre-deposit of the amount involved, the appeal is taken up for disposal.

3. The issue involved in this case is regarding the confirmation of demand of service tax on the ground that the appellant has used the Cenvat credit for discharging the service tax liability on the services provided by Goods Transport Agency to the appellant. The Ld. Adjudicating authority held against the appellant and on an appeal the Ld. Commissioner (Appeals) has come to the following findings while upholding the order-in-original :-

"In terms of rule 3(4) of the Rules, Cenvat Credit can be utilized for the following payments :-

(a)any duty of excise payable on any final products;

(d)service tax on any output service

In terms of the Cenvat Credit Rules, ‘output service’ means any taxable service provided by the provider of taxable service to the service receiver. Further, the definition of ‘provider of taxable service’ includes a person liable to pay service tax. Therefore, reading the two definitions in conjunction, it is clear that, to form ‘output service’, taxable service has to be actually provided by the ‘provider of taxable service’. Even if due to a legal fiction, a consignor or a consignee qualifies to fall under the definition of a person liable to pay service tax (and consequently a ‘provider of taxable service’), it cannot be said that he has actually provided any taxable service. The service provided by a Goods Transport Agent (GTA) for which the consignor the consignee is made liable to pay service tax does not become an ‘output service’ for such consignor or the consignee. Therefore, the service tax payable by the appellant consignor on transportation of goods by road cannot be paid through credit accumulated by such consignor or consignee. The reason is that they were manufacturer and not the service provider. The transport service is being provided by the ‘goods transport agency’ and the appellant paid the service tax only for the reason that the liability for payment of service tax has been shifted to the service received. Accordingly, the appellant had to pay service tax in cash on goods transport by road service."

4. The ld. Counsel submits that the issue is no more res integra and covered by the various decisions of the Tribunal he cites the following two Division Bench decision :

(i)Bhushan Power & Steel Ltd. v. CCE/CST [2008] 12 STT 155 (CESTAT - Kol.);

(ii)M.M.S. Steels Ltd. v. CCE [Final Order Nos. 746 to 772 (Chennai) of 2007, dated 22-6-2007];

(iii)India Cements Ltd. v. CCE [Final Order No. 262 (Chennai) of 2007, dated 20-3-2007];

(iv)Andhra Pradesh Paper Mills Ltd. v. CCE [Final Order No. 728 (Bang.) of 2008, dated 28-6-2007].

The ld. SDR would submit that the findings of the ld. Commissioner (Appeals) are correct and the appellants are required to pay the Service Tax liability by cash.

5. The issue of utilization of Cenvat credit for the payment of the service tax liability by the recipient of the services of Goods Transport Agency, i.e., current appellant before me, is settled by various orders of Tribunal. It is undisputed that the appellant had utilized Cenvat credit for the discharge of the service tax liability of the services received from Goods Transport Agency. I find that the submission made by the ld. Counsel, the issue is squarely covered by the various decisions of the Tribunal is correct. The issue is no more res integra. Accordingly, I find that the impugned order is unsustainable on the