Custom, Excise & Service Tax Tribunal
The Kerala Minerals & Metals Ltd vs Commissioner Of Central Excise, ... on 27 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/Stay/20061/2014 in ST/20083/2014-SM Appeal(s) Involved: ST/20083/2014-SM [Arising out of Order-in-Appeal No. 225-2013 dated 07/10/2013 passed by Commissioner of Central Excise and Service Tax , COCHIN (Appeals)] For approval and signature: HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? The Kerala Minerals & Metals Ltd Sankaramangalam,chavara KOLLAM - 691583 KERALA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Cochin-cce C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018 KERALA Respondent(s)
Appearance:
Shri U.K. Devidas, Advocate For the Appellant Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent Date of Hearing: 27/03/2015 Date of Decision: 27/03/2015 CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 20865 / 2015 Per : B.S.V. MURTHY Service tax of Rs.1,15,142/- with interest has been demanded and penalty under Section 78 equal to the tax demanded has been imposed on the ground that appellant, as a receiver of the service, did not pay the service tax on GTA service. On the last occasion when the matter came up, appellant had been advised to produce evidences to show that the freight was not borne by them. Today when the matter was called, the learned counsel submits a copy of the purchase order according to which, the entire amount of consideration along with the amount towards the freight has been paid to the supplier. The purchase order shows transportation charge at Rs.205 @ per MT as amount payable and that has been included along with other elements to come to a lump sum amount. It is the submission of the learned counsel that appellant has not borne the freight and the liability would arise on the person who pays the freight as per the provisions of Rule 2(1)(d)(v) of Service Tax Rules, 1994. He submits that the freight has been actually borne by the supplier of the product only since he has paid the actual freight to the transporter. It is his submission that appellant has never arranged any transportation to bring the goods and that was done by the supplier only.
2. After considering the submissions, I find that the only one purchase order has been produced and the learned counsel could not confirm that all the purchase orders were on the same conditions and from the same supplier. In such a situation, it would not be proper to take a decision on the matter. It is necessary to consider who has borne the freight and who actually made the payment to the transporter. The service tax liability arises on the basis of a document which is a consignment note issued by the transporter and in this case it is based on the fact that appellant has purchased the product and borne the freight, tax has been demanded. In my opinion, this is not correct. The Revenue should have verified who has received the consignment note and in whose name the consignment note has been issued that could have been the basis.
3. Since the facts are not clear and law has to be applied correctly to the facts, I consider that the matter should be reconsidered by original authority applying the law to the facts correctly. It is necessary to know who is the transporter, whether he has issued a consignment note or not and if he has not issued a consignment note, whether issued a bill and if so in whose name it has been issued.
4. Under the circumstances, it would be appropriate not to postpone the decision and keep the matter pending after considering waiver of predeposit. Therefore, the impugned order is set aside and the matter is remanded to the original authority to enable appreciation of facts correctly and applying the law and thereafter consider whether the demand for service tax is sustainable or not and penalty is imposable or not.
(Order pronounced and dictated in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja.
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