Custom, Excise & Service Tax Tribunal
M/S. Harshita Handling vs Cce, Bhopal on 26 April, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT NO. III SERVICE TAX APPEAL NO. 346 OF 2007 [Arising out of Order-in-Appeal No.118/ST/BPL/2006 dated 30.3.2007 passed by the Commissioner (Appeals), Customs & Central Excise, Bhopal] Dated of hearing/decision: 26th April, 2010 For approval and signature: Honble Dr. C. Satapathy, Member (Technical); Honble Mr. D.N. Panda, Member (Judicial) 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 would 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? M/s. Harshita Handling Appellants Vs. CCE, Bhopal Respondent
Appearance:
Shri Z.U. Alvi, Advocate for the Appellants; Shri Sansar Chand, Authorised Representative (DR) for the Revenue Coram:
Honble Dr. C. Satapathy, Member (Technical);
Honble Mr. D.N. Panda, Member (Judicial) FINAL ORDER NO._________________ dated __________ Per D.N. PANDA:
The only dispute in this appeal is whether the activity carried out by the appellants shall be Repair & Maintenance service or Statutory obligation of technical inspection and certification service.
2. When the appellants were periodically testing the cylinders under Gas Cylinder Rules, 2004 framed under Section 5 & 7 of Indian Explosive Act 1884,such a service was construed by Revenue authority as maintenance and repair.
3. Learned Counsel appearing on behalf of the appellants submitted that the activity carried out by the appellants was neither maintenance nor repair meant for public but statutory obligation discharged under the Explosive Act, 1884. The testing and inspection is statutory one discharged on behalf of the Indian Oil Corporation in terms of work order dated 28.11.2001. In the absence of maintenance or repair the service cannot be called so.
4. Revenues argument is that orders have been passed by the lower authorities properly analyzing the work order placed by I.O.C., Bhopal. Therefore, no interference should be made to the appellate order passed by the learned Commissioner (Appeals).
5. Heard both sides and perused the record. No evidence was brought to our notice by Revenue to appreciate basis of levy of service tax of Rs. 5,17,673/- under the category of Maintenance and Repair. The appellate authority had allowed Small Scale exemption benefit under Notification No. 06/2005 dated 1.3.2005 subject to verification by the adjudicating authority. There is no material on record to show that the appellants does repair and maintenance of cylinders for all in commercial way. Record only reveals that this appellant was engaged by I.O.C. Ltd. to periodical test and upkeep the cylinders under the requirements of Explosive Act, 1884. Without finding any material to agree with adjudication that there was repair and maintenance activity carried out commercially other than under the requirement of Explosive Act, 1884, we set aside the orders of the authorities below and allow the appeal.
(DR. C. SATAPATHY) MEMBER (TECHNICAL) (D.N. PANDA) MEMBER (JUDICIAL) RK 3