Custom, Excise & Service Tax Tribunal
M/S. Shree Chanchal Industries P Ltd vs C.C.E.&S.T., Jaipur-Ii on 29 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 29.01.2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Application No.ST/STAY/59403/2013
Appeal No. ST/58778/2013 -ST[SM]
[Arising out of Order-in-Appeal No.103-104(VC)ST/JPR-II/2013, dated 30.03.2012 passed by the C.C.E.&S.T.(Appeals), Jaipur-II]
M/s. Shree Chanchal Industries P Ltd. Appellants
Vs.
C.C.E.&S.T., Jaipur-II Respondents
Appearance Shri OP Agarwal, Advocate - for the appellants Shri UK Srivastava, DR - for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.50399, dated 29.01.2014 Per Honble Mrs. Archana Wadhwa :
It is seen that out of total confirmed amount of service tax of Rs.15,836/-, the appellants have already deposited an amount of Rs.6,770/- , penalty of Rs.1,750/- and interest of Rs.3,366/-. Accordingly, I dispense with the condition of pre-deposit of balance dues and proceed to decide the appeal itself.
2. The appellants are the manufacture of excisable goods and were availing the GTA services. As a recipient of GTA services, the liability to pay the service tax was on the appellants. Accordingly, proceedings were initiated against them by way of issuance of Show Cause Notice dated 01.11.2010raising demand of service tax of Rs.15,836/- in respect of GTA services so received by them during the period 01.01.2006 to 31.03.2010. During the course of adjudication, the appellants produced on record various consignment notes issued by the transporters along with invoices, wherein apart from consideration of services, service tax was also charged. As such, the appellants contended that they have paid the service tax to the transporters.
3. The Dy. Commissioner, examined all the documents including the documents showing the deposit of service tax by the transport agency and observed that in as much as the appellants have produced one-to-one entry of service tax claim of GTA services in G\\rs and ST deposited in Govt. account by the transport agency, the demand cannot be confirmed against the assessee for the second time. However, as the amount of service tax, for which the documentary evidence was produced by the appellant was only Rs.9,066/-, he confirmed the demand of balance service tax of Rs.6,770/- along with imposition of penalties.
4. The said order of the Dy. Commissioner was challenged by the appellant before the Commissioner (Appeals) as also by the Revenue. The appellate authority rejected the appeal filed by the assessee and allowed the appeal filed by the Revenue. Hence, the present appeal.
5. I find that there is a clear finding of fact by the Dy. Commissioner that in any case service tax of Rs.9,066/- stands deposited by the transporters with the Govt. of India, for which detailed documentary evidence is available. In spite of that Commissioner (Appeals) has reversed the said part of the order on the ground that as per law, it is the recipient of the services, who have to deposit the service tax. He also observed that the recipient have not produced any evidence that the said amount of service tax has been paid by the transporter to the Govt. account, I find the said observation to be contrary to the findings of the facts arrived at by the Dy. Commissioner. The appellate authority, if not satisfied with the findings of the facts of the original adjudicating authority, could have called for a report from him instead of upsetting the said findings on the basis of non-production of records before him. In any case, I find no justification in the view of Commissioner (Appeals) that in as much as it was the assessee who was required to pay the service tax as GTA recipient, the same is required to be confirmed even though the transporters have deposited the same.
6. In any case and in view of the matter, I find that the transporters were charging service tax from the appellants in as much as the same stands reflected in the consignment notes issued by them. As the appellants were paying the service tax to the transporters for further deposit with the Govt., they cannot be held guilty of any mala fide suppression to invoke the longer period of limitation. The demand having been raised on 01.11.2010 for the period 01.01.2006 to 31.03.2010 is barred by limitation, except a few months falling within the limitation. Accordingly, I set aside the demand on the point of limitation and remand the matter to the original adjudicating authority for quantification of duty falling within the limitation period. I find no justifiable reason to impose penalties upon the appellants and the same is accordingly set aside.
7. Stay petition and the appeal get disposed of in the above manner.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -2-