Custom, Excise & Service Tax Tribunal
Sh. Ashok Agarwal vs Cce, Jaipur-I on 30 June, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R.K.Puram, New Delhi-110066.
Principal Bench, New Delhi.
ST/575/07
(Arising out of Revision Order No.25/2007/ST dt.10.5.07 passed by the Commissioner of Central Excise, Jaipur)
Sh. Ashok Agarwal Appellant
Versus
CCE, Jaipur-I Respondent
Appearance Sh. Atul Gupta, CS For Appellant Sh. S.R.Meena, Authorised Departmental Representative(DR) For Respondent Coram: Honble Mr. D.N.PANDA, JUDICIAL MEMBER Honble Mr. RAKESH KUMAR, MEMBER (TECHNICAL) Date of decision: 30.6.09 Order No._______________________ Per D.N.Panda:
Ld. Authorised Representative Sh. Atul Gupta submits that by virtue of adjudication order dt.11.9.06, the ld. authority came to a conclusion that godown rent received shall not be liable to service tax under C&F Agency since an entry Storage & warehousing to tax rental income from godown was incorporated into the statute book from 16.8.02.
2. After passing the adjudication order, in order to protect the interest of revenue, the Adjudicating authority has issued a show cause notice on 13.9.06 to tax godown rent under the above category relating to the period 16.8.2002 to March,2004. In the meantime, the above adjudication order dt.11.9.06 was reviewed by the Ld. Commissioner in exercise of power conferred on him under Section 84 of Finance Act,1994. Accordingly, the impugned order on 16.5.2007 passed, has brought the godown rent received before 16.8.02 and thereafter to the ambit of tax.
3. Ld. Authorised Representative Shri Gupta further submits that when there is a specific entry brought godown rent to tax under the category of Storage and warehousing w.e.f. 16.8.02, the review order is unsustainable in view of separate show cause notice dt.13.9.06 issued to tax godown rent received after 16.8.02 to March,2004.
4. Ld. DR submits that godown rent is an incidental income received while providing service by a C&F Agent. Therefore, the review order was passed appropriately.
5. Heard both sides and perused the records.
6. There is no dispute that godown rent or warehousing rent has been brought to tax w.e.f. 16.8.02. Sub-section (102) has been incorporated into Section 65 to define the term storage and warehousing. This definition clearly brings into fold the storage and warehousing activity. With this background, when the definition of Clearing & Forwarding Agent appearing under Section 65(25) of the Finance Act,1994 is read, that brings into its fold only any service directly or indirectly provided in connection with C&F Operations. We have noticed that the appellant has provided godown facility to M/s. Chambal Fertilizers in terms of two separate agreements for two different activities namely C&F service and warehousing service. There is also no dispute that C&F service has been taxed and the appellant is discharging its liability. The only dispute being godown rent received after 16.8.02 whether taxable by Review Order while that was not subject matter of order dt.11.9.06 reviewed.
7. The appellant brought to our notice that a separate show cause notice dt.13.9.06 has been issued to tax godown rent received after 16.8.02. Ld. Commissioner passed revision order on 16.5.07 and that is only after SCN dt.13.9.06 was issued to tax godown rent received after 16.8.02. The revision order has also taxed godown rent received before 16.8.02. The appellant might have also made a reply to the SCN. If the reply relates to the period after 16.8.02, that requires consideration in the proceeding initiated by SCN on 13.9.06. Ld. Authorised representative has no instructions as to whether adjudication in terms of SCN dt.13.9.06 has been made. If that has not been made, Ld. adjudicating authority can make use of the reply of the appellant lying in the records of the Ld. Commissioner in the revision proceedings.
8. Both sides are required to advise on the above issue whether adjudication in term of SCN dt.13.9.06 has been made.
Order dictated in the open Court.
(D.N.Panda) Judicial Member (Rakesh Kumar) Member Technical km