Custom, Excise & Service Tax Tribunal
Raju Steel Industries vs Commissioner Of Central Excise on 23 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/87628/13 (Arising out of Order-in-Appeal No. PVR/261/NGP/2013 dated 10.05.2013 passed by Commissioner of Customs & Central Excise (Appeals), Nagpur) Raju Steel Industries Appellant Vs. Commissioner of Central Excise, Nagpur Respondent
Appearance:
None for appellant Shri Vivek Dwivedi, Asst. Commr (AR) for respondent CORAM:
Honble Shri S.S. Garg, Judicial Member Honble Shri C.J. Mathew Technical Member Date of Hearing : 23.01.2018 Date of Decision : ..
ORDER NO Per: S.S. Garg The present appeal is directed against the impugned order dated 10.05.2013 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the order of the original authority.
2. Brief facts of the case are that during the course of audit of the appellants records, it was revealed that during the financial years 1999-2000 to 2002-2003 the appellant had rendered services of Clearing and Forwarding Agents and had received Brokerage / Commission from various customers, in connection with the activity of lifting and handling of iron & steel products from SAIL, RINL and TATA, but has not paid service tax of Rs.1,01,706/-. Therefore, a show-cause notice was issued to them. The Dy. Commissioner, Central Excise, Division-I, Nagpur, has adjudicated the case on 20.07.2005 confirming the demand of service tax of Rs.1,01,706/-. He further imposed penalty of an equal amount under Section 76. He also imposed penalty of Rs.2,03,412/- under Section 78 of the Act. Another penalty of Rs.4,000/- has been imposed under Section 77 and a penalty of Rs.500/- under Section 75A of the Finance Act, 1994. The appellant has filed an appeal before the Commissioner (Appeals), Nagpur who remanded the matter to the original adjudicating authority on the ground that the appellant had specifically pleaded that the amount recovered from SKG Refractories was related to Brokerage on account of settling the payments on behalf of SAIL and that they have not undertaken any activity of handling of cargo, which had not been examined and adjudicated by the Dy. Commissioner. The respondent has decided the case as per the direction of Commissioner (Appeals).
3. Aggrieved by the order-in-original, the appellant filed an appeal before the Commissioner (Appeals) who rejected the appeal hence the present appeal.
4. None appeared on behalf of the appellant as the Counsel for the appellant has informed the Tribunal that he has withdrawn his vakalatnama but the appellant has filed written submissions and requested that the case may be disposed on the basis of written submission.
5. Heard the learned A.R. for the Revenue and have also perused the written submission filed by the appellant.
6. In the grounds of appeal, the appellant has submitted that the impugned order is not sustainable in law as the same has been passed without considering certain principles of law. It has also been submitted in the grounds that after remand the order challenged does not remain in existence. Further, the Commissioner (Appeals) has also committed a serious error in not examining the issue of taxability of appellants activity under the category of Clearing & Forwarding Agent service solely on the basis of the remand order passed by his predecessor. Commissioner (Appeals) has also failed to take note of the fact that his predecessor has not recorded any finding whatsoever as to the taxability of the appellants activities under the category of Clearing & Forwarding Agent. Further, the Commissioner (Appeals) has totally mis-interpreted the order of remand passed by his predecessor as being restricted to the taxability of the amounts received from SKG Refractories alone. It is also being submitted in the written submission that the appellant was not receiving the goods nor storing nor forwarding those to their clients but was concerned only with the supervision of loading of the goods at the stockyards of SAIL, RINL and Tisco for which the appellant has paid handling charges. All further operations including those of transportation of goods were undertaken by the owners of the goods.
7. On the other hand, learned A.R. reiterates the finding of the lower authority.
8. After considering the grounds of appeal and written submission and after hearing learned A.R., we find that in the present case, the original authority has not passed the order as per the direction of the remand order of the Commissioner (Appeals). We also find that the original authority has reconfirmed the demand and the penalties without applying its mind as per the direction of the remand order.
8.1 Further, we also find that both the lower authorities have not gone into the question of demand of service tax under the category of Clearing and Forwarding agent service. Further, we find that the service rendered by the appellant does not fall under the category of Clearing & Forwarding Agent service because they were not receiving the goods nor storing them nor forwarding those to the clients but they are only supervising the loading of the goods at the stockyards of SAIL, RINL and Tisco for which they paid handling charges which does not fall under the category of Clearing & Forward Agent service.
9. In view of this, we are of the considered opinion that impugned order is not sustainable in law and the same is set aside. Thus, appeal of the appellant is allowed.
(pronounced in Court on.) (C.J. Mathew) Technical Member (S.S. Garg) Judicial Member nsk 1 5 Appeal No. ST/87628/13