Custom, Excise & Service Tax Tribunal
M/S. Indorama Synthetics (I) Ltd vs Commissioner Of Central Excise, Nagpur on 26 March, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION NO. ST/S/233-234/2010 IN APPEAL No. ST/50-51/10 (Arising out of Order-in-Appeal No. SR/261/NGP/2009 dated 31.03.2009 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur) For approval and signature: Mr. P.G. Chacko, Honble Member (Judicial) Mr. S.K. Gaule, Honble 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== M/s. Indorama Synthetics (I) Ltd. Appellant Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: Shri T. Viswanathan, Advocate for appellant Shri H.B. Negi, Authorised Representative (SDR), for respondent CORAM: Mr. P.G. Chacko, Honble Member (Judicial) Mr. S.K. Gaule, Honble Member (Technical) Date of Hearing: 26.03.2010 Date of Decision: 26.03.2010 ORDER NO Per: P.G. Chacko, M(J)
After examining the records and hearing both sides, we are of the view that the appeals should be summarily disposed of. Accordingly, after dispensing with pre-deposit, we take up the appeals for disposal.
2. In these appeals filed by the assessee, the short question which arises for consideration is whether the appellant was entitled to pay service tax, during the period of dispute, on GTA service (which was availed for outward transportation of their final products), by making use of Cenvat credit taken on input services. According to the original authority, they were not entitled to utilize Cenvat credit taken on input services for payment of service tax on the aforesaid GTA service. The adjudicating authority did not recognize the said GTA service as an output service. Therefore, appeals were filed before the Commissioner (Appeals), wherein the assessee also filed stay applications. The appellate authority disposed of the stay applications by directing the party to pre-deposit the entire amount of duty under Section 35F of the Central Excise Act. No pre-deposit was made by the appellant and consequently their appeals came to be dismissed for want of compliance. Hence the present appeals of the assessee.
3. The Learned Counsel for the appellant submits that there are ever so many decisions by this Tribunal holding that the GTA service availed for outward transportation of the final products is an output service for purposes of Rule 2(p) of the Cenvat Credit Rules, 2004. In this connection, he has relied on India Cements Ltd. vs. Commissioner of Central Excise, Salem 2007 (7) S.T.R. 569 (Tri. Chennai) and Mahindra Ugine Steel Co. Ltd. vs. CCE, Raigad 2008 (12) S.T.R. 159 (Tri. Mumbai). It is also pointed out that the issue now stands referred to Larger Bench vide Panchmahal Steel Ltd. vs. Commissioner 2008 (12) S.T.R. 447 (Tri. Ahd.). We have heard the learned DR also.
4. Considering the fact that there are decisions of this Tribunal in favour of the assessee and also the fact that the issue stands referred to the Larger Bench, we are of the view that the appellant need not be directed to make any pre-deposit. Accordingly, we set aside the impugned orders and allow these appeals by way of remand, with a request to the learned Commissioner (Appeals) to dispose of the assessees appeals (filed against the orders-in-original) on merits without insisting on pre-deposit, after giving them a reasonable opportunity of being heard.
(Pronounced in Court) (S.K. Gaule) Member (Technical) (P.G. Chacko) Member (Judicial) nsk 1 3