Custom, Excise & Service Tax Tribunal
M/S. Mlj Foods Pvt. Ltd vs Cce Jaipur Ii on 20 February, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Service Tax Appeal No. 1614 of 2011-Ex(SM) [Arising out of Order-In-Appeal No. 358-359/CB/ST/JPR II/2011 dt. 30.8.2011 passed by Commissioner of Customs & Central Excise (Appeals), Jaipur] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s. MLJ Foods Pvt. Ltd. Appellants Vs. CCE Jaipur II Respondent
Appearance:
Shri O P Agarwal, CA for the Appellant Shri M S Negi, AR for the Respondents Date of Hearing : 20.02.2014 ORDER NO .FO/ A/ 50823 /2014-SM(Br) Per Archana Wadhwa:
After hearing both sides, I find that the Service Tax of Rs.1,42,019/- stand confirmed against the appellant for the period 1.1.05 to 31.3.07 by raising a show cause notice on 20.2.08 on the ground that during the said period, they have received the GTA services for inward as well as outward transportation and have not discharged their service tax responsibility as recipient of said services.
2. From the show cause notice issued to the appellant, I find that reference to the statement of Shri Pawan Pareek, General Manager makes it clear that the appellant was paying service tax to the transporter, who were depositing the same with the Revenue. Wherever the transporters were not paying Service Tax, the appellants had paid the same. However, the said stand of the appellant was not accepted by the lower authorities on the ground that appellant have not produced any documentary evidence, in support of their above contention. Accordingly, the demand of service tax was confirmed. However, the original adjudicating authority did not impose any penalty under Section 78 of the Finance Act, 1994. The said part of the order of the original adjudicating authority was appealed against by the Revenue before Commissioner (Appeals), who rejected the same by extending the benefit of section 80 of the Finance Act, 1994.
3. Learned Consultant appearing for the appellant submits that inasmuch as both the authorities below have not imposed any penalty under section 78, the said fact leads to the inevitable conclusion that there was no suppression on their part, in which case the longer period of limitation would not be available. As such, he submits that major part of the demand, except amount of Rs.3000/- approx. would fall outside the limitation period. As regards the demand falling within the limitation period, he submits that he was entitled to avail the credit of the same and as such the entire situation is revenue neutral. He relied upon the Larger Bench decision of the Tribunal in the case of Jay Yuhshin Ltd. vs. CCE reported as [2000 (119) ELT 718 (Tri-LB)].
4. Countering the argument, learned DR appearing for the Revenue submits that as recipient of the GTA services, the assessee was liable to discharge its duty liability. As regards their contention that transporters have paid the service tax, learned DR submits that there is no documentary evidence produced by the appellant to that effect. As regards the limitation, he submits that such fact was not being disclosed by the assessee and as such, longer period of limitation is available to the Revenue. He accordingly prays for rejecting the appeal.
Without going into the disputed factual issue as to whether the service tax was being paid by the transporters or not, I find that the admittedly the lower authorities have not imposed any penalty under Section 78 of the Finance Act by extending the benefit of section 80. Plethora of judgment are to the effect that such extension of section 80 benefit would be a reasonable ground for non-invokation of longer period of limitation. Reference can be made to the Tribunals decision in the case of Royal Travels vs. CCE, Vadodara [2011 (21) STR 31 (Tri-Ahmd)]; Anil Kumar Yadav vs. CCE, Pondicherry [2011 (22) STR 20 (Tri-Chennai)] and also to the Bombay High Court decision in the case of The Saswad Mali Sugar Factory Ltd. vs. CCE, Pune II [2013TIOL-898-HC-MUM-ST].
5. As such, I hold that demand beyond the limitation period is not sustainable.
6. As regards the demand within the limitation period, learned advocate submits that he is entitled to take the credit of the same. However, I find that appellants final product are assessable to duty under Section 4A of Central Excise Act, in which case, they will not be entitled to credit of service tax paid on outward transportation of the goods in terms of law declared by the Tribunal in the case of Ultratech Cement Final Order No. 1680/2012-SM(Br) dated 21.12.2012. As it is not clear as to whether the said disputed services were inward or outward transportation, I direct the lower authorities to adjudge on the appellants liability to the credit of Service Tax so paid after verifying the above factual fact. If the appellants are entitled to the Cenvat credit of duty on inward transportation, demand to that extent can be neutralized. Penalty under section 76 would also be decided accordingly.
7. Appeal is disposed of in the above manner.
(Pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
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