Calcutta High Court
Commissionerate vs M/S. Bharat Petroleum on 8 February, 2024
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
O-325
CEXA/40/2019
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (Central Excise)
ORIGINAL SIDE
COMMISSIONER OF SERVICE TAX,
KOLKATA @ COMMISSIONER OF
CGST AND CX, KOLKATA SOUTH
COMMISSIONERATE
-Versus-
M/S. BHARAT PETROLEUM
CORPORATION LTD.
BEFORE :
THE HON'BLE JUSTICE SURYA PRAKASH KESARWANI
And
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
Date : 8th February, 2024
Appearance:
Mr. Vipul Kundalia, Adv.
Mr. Tapan Bhanja, Adv.
...for the appellant.
1. Heard Sri Vipul Kundalia, learned senior standing counsel assisted by Mr.
Tapan Bhanja, learned advocate for the indirect tax/appellant.
2. The revenue has filed the present appeal praying to set aside the order
no.FO/76227/2018 dated 06.08.2018 in Service Tax Appeal No.140/2009
passed by the Customs, Excise and Service Tax Appellate Tribunal,
Kolkata (East Zonal Bench, Kolkata).
3. The only ground to challenge the impugned order of the Tribunal, as
argued before us by learned counsel for the appellant; is that declaration
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by the Goods Transport Agency in the consignment note has not been
made so as to comply with the two conditions of Notification No.32/2004-
ST dated 03.12.2004 that "neither credit on inputs or capital goods used
for provision of service has been taken nor the benefit of notification
no.12/2003-ST has been taken by them." Therefore, the exemption shall
not be available. Learned counsel for the appellant further submits that
the declaration separately made by the GTA shall not amount to fulfilment
of the condition of the notification No.32/2004-ST dated 03.12.2004 since
the circular No.B1/6/2005 - Tru dated 27.7.2005 provides a mechanism
for making endorsement on the consignment note and not separately.
4. We have carefully considered the submission of the learned counsel for
the appellant and we do not find any substance in it. The aforesaid
circular heavily relied by learned counsel for the appellant merely provides
that if a declaration in the consignment note is made then it may suffice
for the purpose of fulfillment of abatement by the person liable to pay
service tax. The circular has neither narrowed down the notification in
question nor it can narrow down it. It is merely for the purposes of
removing the inconvenience in availing the benefit under the notification
that the circular provides as an option to make declaration on the
consignment note as compliance of the condition of the notification in
question. It does not prohibit making a declaration separately.
5. We have also perused the order in original no.47 dated 30.01.2009 passed
by the Commissioner of Central Excise, Kolkata wherein he has
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exhaustively dealt with the issue and found that conditions have been
satisfied by the assessee and, accordingly, he dropped all the proceedings
initiated vide show cause notice dated 13.04.2006. The Tribunal, by the
impugned order, has affirmed the order in original passed by the
Commissioner of Service Tax. The finding of fact has been recorded in the
order in original by the Commissioner of Central Excise that conditions
have been satisfied by the respondent herein. The Tribunal has
concurred with the findings. The findings recorded are findings of fact based on consideration of relevant materials on record. No substantial question of law arises from the impugned order of the Tribunal in view of the fact briefly noted above and the detailed discussion and findings of facts recorded in the order in original passed by the Commissioner of Service Tax. Hence, the appeal deserves to be dismissed.
6. In view of the aforesaid, the appeal (CEXA/40/2019) is dismissed at the admission stage.
(SURYA PRAKASH KESARWANI, J.) (RAJARSHI BHARADWAJ, J.) As.