Custom, Excise & Service Tax Tribunal
M/S.Subramanyasiva Cooperative Sugar ... vs Commissioner Of Central Excise, Salem on 14 May, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.ST/221 & 222/2009
[Arising out of Order-in-Appeal No.28/2009-(SLM) (ST) dated 26.02.2009 passed by the Commissioner of Central Excise (Appeals), Salem]
M/s.Subramanyasiva Cooperative Sugar Mills Ltd.,
M/s.Salem Cooperative Sugar Mills Ltd.,
Appellants
Versus
Commissioner of Central Excise, Salem
Respondent
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice-President
1. Whether Press Reporters may be allowed to see 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 :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Member wishes to see the fair copy of : the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities?
Appearance :
Shri Derrick, Adv.
Shri T.H. Rao, SDR For the Appellants For the Respondent CORAM:
Honble Smt. Jyoti Balasundaram, Vice-President Date of hearing : 14.05.2010 Date of decision : 14.05.2010 Final Order No.____________ Service Tax demand has been confirmed against both the assessees herein on the ground that they were receiving Good Transport Agency services. Penalties have also been imposed.
2. I have heard both sides on the appeals against the demand and penalties. The assessees have filed applications to raise additional ground that they received services from individual truck/tractor operators who do not fall within the definition of GTA as per Section 65(50b) of the Finance Act, 1994. Since the applications are based upon the Tribunals decision in Commissioner of Central Excise & Customs, Guntur Vs Kanaka Durga Agro Oil Products Pvt. Ltd. [2009 (15) S.T.R.399 (Tri.-Bang.)] holding that service tax is not payable when transport services are rendered by individual truck/transport operators, the applications are required to be allowed. I order accordingly.
3. The details of owners of vehicles on which the goods were loaded were not available before the authorities below. The interest of justice therefore requires that the case be remanded to the adjudicating authority for verification of the assessees submissions. If the assessees were correct in their contention that the transporters were only individuals, then the Tribunals decision in Kanaka Durga cited supra would apply and the demand cannot be sustained. It is for this purpose that I remit these two cases for fresh decision to the adjudicating authority after setting aside the impugned orders. Fresh orders are to be passed after extending a reasonable opportunity of hearing to the assessees.
4. Both the appeals are thus allowed by way of remand.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) VICE-PRESIDENT ksr 14-05-2010 ??
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