Custom, Excise & Service Tax Tribunal
M/S. Pepsico India Holdings Pvt Ltd vs Commissioner Of Central Excise, ... on 5 September, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/2025/2010-SM, ST/2026/2010-SM [Arising out of Order-in-Appeal No.15 & 16/2010 dated 11/06/2010 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), Cochin.] M/s. PEPSICO INDIA HOLDINGS PVT LTD WISE PARK, INDUSTRIAL DEVELOPEMENT AREA, KANJIKODE, PALAKKAD, KERALA Appellant(s) M/s. PEPSICO INDIA HOLDINGS PVT LTD WISE PARK, INDUSTRIAL DEVELOPEMENT AREA, KANJIKODE, PALAKKAD, KERALA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax CALICUT CENTRAL REVENUE BUILDING, MANANCHIRA, CALICUT, KOZHIKODE, - 673001 KERALA Respondent(s)
Appearance:
Shri G. Shivadass, Advocate V. LAKSHMIKUMARAN & V. SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, MALLESWARAM. BANGALORE - 560 055 KARNATAKA For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 05/09/2017 Date of Decision: 05/09/2017 CORAM:
HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER Final Order No. 21940-21941 / 2017 Per : S.S. GARG Both these appeals are directed against the common impugned order passed by the Commissioner (A) vide order dated 11.6.2010 vide which the appeals filed by the appellant were rejected.
2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of aerated water falling under Chapter Heading 22 of Central Excise Tariff Act, 1985. They were making payments under the head Carriage Inwards on raw materials, packing materials, etc., and as Carriage Outwards on finished goods to various goods transport agencies. However, appellants have not taken service tax registration or paid service tax on the said freight as prescribed in the Finance Act, 1994. Therefore the Assistant Commissioner of Central Excise, Palakkad Division issued three show-cause notices to appellants against non-registration, non-payment of service tax, non-filing of return for the services rendered by them under the category of Goods Transport Agency as prescribed under Finance Act, 1994. The details of the demand confirmed and period involved are given herein below:
SCN No./Date Amount Period No.15/2006/ST dated 25.4.2006 Rs.3,94,320/-
01.01.2005 to 31.3.2005 No.31/2006/ST dated 13.10.2006 Rs.38,65,494/-
01.04.2005 to 31.3.2006 No.41/2007/ST dated 4.10.2007 Rs.5,70,991/-
01.04.2006 to 31.7.2006
3. Heard both sides and perused the records.
4. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the documents submitted by the appellant showing the proof of payment of Service Tax for the Palakkad Unit. He also submitted that Chennai Office had obtained registration and were discharging service tax for their Palakkad Unit. However, from July 2005, the registered Coimbatore Office started paying service tax for Palakkad, Madurai and Coimbatore Units. He also submitted that both the Chennai and Coimbatore office filed letters dated 31.1.2006 and 8.11.2006 respectively with the Department communicating the details of payment of service tax pertaining to Palakkad Unit and ST-3 Returns/TR-6 Challans evidencing the same has also been furnished along with paper book. Further, the appellant has also filed copies of Chartered Accountant certificate certifying that the entire tax relating to Goods Transport Agency service in relation to Palakkad Unit along with other units were discharged by Chennai and Coimbatore Units and the same has also been enclosed with the appeal papers. He also submitted that there was no revenue loss as appellant had discharged their liability to the Government. He also submitted that appellants are eligible for abatement in terms of Notification No.32/2004 dated 1.12.2004 as the appellants have discharged their liability in consideration of the same and the declaration of the same has also been enclosed with these appeal papers.
5. On the other hand, the learned AR submitted that the appellants did not produce the Chartered Accountant certificate and on failure to furnish the same, strong inference was drawn against the appellant. He further submitted that as per the impugned order, there is no conclusive proof that appellants have taken a centralized registration including the Palakkad unit and that the service tax liability of the Palakkad Unit has been discharged during the period involved.
6. After considering the submissions of both the parties and perusal of the material on record, I find that the Commissioner (A) has mainly rejected the claim of the appellant on the ground that they have not produced the Chartered Accountant certificate showing the proof of payment of service tax for the Palakkad Unit whereas the appellant has produced all the documents with the appeal papers showing the proof of payment. In view of this, I am of the considered view that these cases needs to be remanded back to the original authority with a direction to consider all the documents which may be produced by the appellant showing the proof of payment of service tax and also the Chartered Accountant certificates and thereafter, pass a fresh order in accordance with law. The original authority before passing the fresh order will give an opportunity of hearing and also opportunity of producing necessary documents to the appellant. The original authority will pass the de novo order within a period of three months from the date of receipt of the certified copy of this order. Both the appeals are allowed by way of remand.
(Operative portion of the Order was pronounced in Open Court on 05/09/2017) S.S. GARG JUDICIAL MEMBER rv 5