Customs, Excise and Gold Tribunal - Bangalore
Vijayanand Roadlines Limited vs Commissioner Of C. Ex. on 10 August, 2005
Equivalent citations: 2006[ ]S.T.R.113
ORDER S.L. Peeran, Member (J)
1. The appellant is challenging the OIA No. 456/2003-C.E., dated 28-11-2003 insofar as the confirmation of demands for periods subsequent to February, 2001 onwards where there was no issue of Show Cause Notice. The appellants are also challenging the rejection of their adjustment claim during December 1999 to December 2000 as per Section 68 read with definitions set out in Section 65(20) of the Finance Act, 1994. The appellants' contention is that although they are registered as Courier Agency in terms of the above provision, but the activity of the customer delivering the documents in their office would not come within the ambit of the definition of the Courier services which spells out "door-to-door delivery". They contend that they have paid service tax in so far as the activity of their collecting the documents from the door of the customer but where the customer has come and handed over the documents to them, then that should not be brought within the ambit of the courier services. Therefore, their claim for abatement should have been granted. The learned Counsel argued at great length in the light of the definition and the Board's Circular No. 341/43/96-TRU and Trade Notice No. 114/96 of the Mumbai-II Commissionerate dated 1-11-1996 wherein in para 12, the scope of Courier Agency has been explained. This explanation distinguishes the activity of the courier agency from that of the ordinary transporters, which carry goods from one place to another place.
2. Heard both sides.
3. On a careful consideration, I am not impressed with this argument. The Board's Circular, in the said paragraph, clearly distinguishes a courier agency from an ordinary transporter who provides transportation of goods or articles. In no way, this clarification supports the view of the appellant as put forth now.
4. The point that is required to be considered is as to whether the demands can be confirmed from February 2001 onwards in the absence of Show Cause Notice. These demands are not sustainable in the light of the Apex Court judgments rendered in the cases of (a) Gokak Patel Volkart Limited v. CCE, Belgaum ; (b) UOI and Ors. v. Madhumilan Syntex Pvt. Ltd. and (c) Metal Forgings v. UOI wherein the Apex Court has clearly held that Show Cause Notice is a mandatory requirement for raising demands and that communications, orders, suggestions or advices from department cannot be deemed to be a Show Cause Notice. A specific Show Cause Notice indicating the amount demanded and calling upon the assessee to put forth their case if he has any objection to such demand has been held to be a necessary ingredient for confirming demands. Therefore, the confirmation of demands from "February 2001 onwards" is set aside.
5. In so far as the claim of the appellants for abatement of duty paid in respect of the customers having come and delivered the documents to their door and their contention that the same is not covered by the definition of Courier Service, is rejected. The definition of 'courier service' in Para 27 of the Act reads as follows :
Courier agency" means a commercial concern engaged in the door-to-door transportation of time-sensitive documents, goods or articles utilising the services of a person, either directly or indirectly to carry or accompany such documents, goods or articles.
The violation to the definition cannot be made in a manner so as to interpret in a way that would make the definition otiose and redundant. The activity of the appellant transporting time-sensitive documents, goods or articles utilising the services of a person either directly or indirectly to carry or accompany such documents, goods or articles is not denied. The appellants' only contention is that they are not going to the door of the customer and want to restrict the term 'door-to-door' transportation to mean that it excludes the cases where the customer comes to their door. Such an interpretation is not possible. When the services of a person is utilised either directly or indirectly inasmuch as the customer goes to the courier agent's office and delivers his documents, goods or articles, it is also required to be considered as covered under the definition of "Courier Agency". The findings given by the Commissioner (Appeals) on this point is reproduced herein below:
Courier Agencies undertake the service of transportation of goods and documents from one place to another where time sensitivity and ensuring delivery at the door is the prime criteria. Only in respect of very big customers, the courier agencies collect the documents from the premises of the customers and deliver to the consignees. They do not collect the documents at the door of every consigner. I cannot think of any acceptable reason for exempting services where the consigners go to the office of the courier to deposit the documents from the ambit of Service Tax. Such a distinction in courier services is very much repugnant to common sense. In my view even if the consigner goes to the office of the courier for depositing the documents, the same should be considered door-to-door delivery. I also do not find any difference in tariff rates on account of the fact that the documents and goods are not collected from the premises of the consigner and delivered in the premises of the consignees. Therefore, door-to-door transportation should be interpreted to include the cases where consigners and consignees go to the courier office for depositing the documents and taking delivery of the same.
6. The above finding is concurred to by this Bench. The impugned order is modified to the extent indicated only. Otherwise, the point raised with regard to the restrictive meaning to be given to Courier Agency inasmuch as the agent collecting documents from the customers alone is covered, is rejected. The appeal is disposed of in the above terms.
(Pronounced in open Court on 10-08-2005)