Custom, Excise & Service Tax Tribunal
Western Coal Fields Ltd vs Commissioner Of Central Excise, Nagpur on 7 April, 2015
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
ST/208, 210, 214/08
- Mum
(Arising out Order-in-Original No. 16/ST/2008-C dated 16.07.2008 & 18 & 17/ST/2008-C dated 22.07.2008 passed by the Commissioner of Central Excise & Customs, Nagpur)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial)
Honble Mr. P.S. Pruthi, Member (Technical)
1. Whether Press Reporters may be allowed to see No
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 No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Western Coal Fields Ltd.
Appellant
Vs.
Commissioner of Central Excise, Nagpur
Respondent
Appearance:
Shri S.N. Kapoor, Advocate for the appellant Shri D. Nagvenkar, Addl.Comm.(AR) for the respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) Date of hearing : 07/04/2015 Date of decision : 07/04/2015 O R D E R No:..
Per: M.V. Ravindran:
These three appeals are directed against Order-in-Original No. 16/ST/2008-C dated 16.07.2008 & Order-in-Original nos. 18 & 17/ST/2008-C dated 22.07.2008.
2. Since all the issues are pertaining to the same assessee and raised a question of law, we dispose of the appeals by a common order.
3. The facts that arise for our consideration are the appellants herein are a coal fields and are engaged in the extraction of coal. The said extracted coal is later on shifted from mines to warehouse and from warehouse to coal handling plant, railway siding etc. from where the coal is transported out. For transportation of the coal to railway siding the appellant engages service of various transporters and pays them amount as per the contract. It is the case of the revenue the amount paid by the appellant to transporter would fall under service tax net under the category of Goods Transport Agency service. The period involved in these cases is 01.01.2005 to 31.07.2007. The Adjudicating Authority after following the due process of law confirmed the demand along with interest and imposed penalties.
4. Ld. counsel would submit that the issue is no more res integra as identical issue has been decided by the Principal Bench of the Tribunal in the case of South Eastern Coal Fields Ltd. 2014-TIOL-1554-CESTAT-DEL. It is also his submission that the show-cause notice raised on 25.06.2007 is clearly time barred. He would submit that the appellant had sought clarification whether service tax liability arises on the services within the mining area. He submits that CBEC circular no. 232/2/06-CX dated 12.11.2007 has clarified that such transportation undertaken would be covered under Goods Transport Agency service. It is his submission that the said clarification will be effective from 12.11.2007 and the period involved is prior to 12.11.2007.
5. Ld. Departmental Representative, on the other hand, would submit that the revenue is in appeal against the judgment of the Tribunal in the case of South Eastern Coal Fields Ltd. (supra) before the Hon'ble High Court of Chhattisgarh and appeal has been admitted. It is his submission that once an appeal has been admitted in higher court, the said judgment is in jeopardy.
6. We have considered the submission made at length by both sides.
7. Undisputedly, the issue is regarding service tax liability on an amount paid by the appellant to the transporter, for transportation of coal within the mining area. We find that the entire argument of the assessee is that the transportation of the coal takes place within the mining area under Goods Transport Agency as no consignment note is issued by the transporter. Ld. Departmental Representative brought to our notice the Truck Authorisation Slip to submit that the Truck Authorisation Slip were considered as consignment note as it contains all the details. Disagreeing with the submission, on a specific query put by the bench, it was informed that these slips were issued by the appellant and not the transporter.
8. On these factual matrix, we find the issue is no more res integra as the judgment of the principal bench in the case of South Eastern Coal Fields Ltd. was considering identical/similar issue. We reproduce the entire order.
The assessee has preferred an appeal against the adjudication order dated 20.2.2008 (reflected as dated 19.2.2008) passed by the Commissioner of Central Excise, Raipur. This order confirmed service tax demand of Rs.8,82,03,138/- besides penalty of an equivalent amount under Section 78 of the Act and penalty of Rs.1000/- each on the noticees 2 to 25 (who do not appear to have filed any appeals).
2. On the ground that appellant received Goods Transport Agency service during January 2005 to 30th June, 2006 but failed to file returns or remit service tax due, being the recipient of the said service, proceedings were initiated by the show cause notice dated 20.11.2006.
3. On the admitted factual scenario, the appellant (owns and administers coal mines in the State of Chattisgarh and is a subsidiary of Coal India Ltd. principally engaged in mining and sale of coal) entered into agreement with 24 transporters for transportation of the mined coal to the railway siding. None of the 24 transporters however issued a consignment note by whatever name called, whether falling within ambit of the definition of consignment note in Rule 4(B) of the Service Tax Rules, 1994 or otherwise for rendition of the service of transportation of coal to the railway siding. The fact of non-issuance of consignment note by transporters is adverted to in para 12 of the show cause notice itself. There is also no allegation either expressly or by implication in the show cause notice that non-issuance of consignment notes by transporters for transporting coal was on account of any inducement or prescription by the appellant that no such consignment notes be issued by transporters.
4. Negating the contention of the appellant that since no consignment notes were issued, the service rendered by transporters would not amount to Goods Transport Agency [defined in Section 65(50b)] and enumerated as taxable service in Section 65(105)(zzp), the impugned adjudication order confirmed the levy of service tax, interest and penalty.
5. If the transaction/service provided by the 24 transporters to the appellant fall within ambit of Goods Transport Agency service within the meaning of the aforesaid provisions, the appellant would be liable to tax though being recipient of the service is not contested by the appellant and it is conceded that under this taxable service, recipient of the service is liable to tax. The only issue canvassed is the one presented to the adjudication authority which did not his commend acceptance namely, that since no consignment notes were issued by transporters, the services provided to the appellant fall outside the ambit of GTA.
6. The issue is no longer res integra. Learned Division Benches of this Tribunal in Birla Ready Mix vs. C.C.E., Noida - 2013 (30) STR 99 (Tri-Del.) and in Final Order No.ST/A/50679 50681/2014-CU(DB) dated 13.1.2014 in Nandganj Sihori Sugar Co. Ltd. and others vs. C.C.E., Lucknow unambiguously enunciated the principle that qua the definition of Goods Transport Agency enacted in Section 65 (50b) of the Act, to fall within the ambit of the defined expression issuance of a consignment note is non-derogable ingredient.
7. In view of the law declared and the factual matrix of this appeal since where admittedly no consignment notes were issued by the 24 transporters for transportation of the appellants coal, the Goods Transport Agency service cannot be held to have been rendered. That being the position the appellant is not liable to tax.
8. On the aforesaid analyses the impugned adjudication passed by the Commissioner, Central Excise, Raipur is unsustainable and is accordingly quashed. No order as to costs.
9. As regards the point raised on limitation, since we have held that on merits the issue is covered by our own judgement; we are not recording any finding on the point of limitation.
10. In view of the foregoing, in the facts and circumstances of the case, we set aside the impugned orders and allow the appeals with consequential relief, if any.
(Dictated in Court) (P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial) //SR 7