Custom, Excise & Service Tax Tribunal
M/S Dinshaw Dairy Foods Ltd vs Commissioner Of Central Excise, Nagpur on 24 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Application No. ST/COD/95543/13
ST/S/95544 & 92647/13
In Appeal No. ST/87160 & 85357/13
(Arising out of Order-in-Appeal No. PVR/276/NGP/2012 dated 31.12.2012 passed by the Commissioner of Central Excise & Service Tax (Appeals), Nagpur).
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Dinshaw Dairy Foods Ltd. Appellant Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: Shri G.L. Deshpande, Advocate for Appellant Shri Shobha Ram, Commissioner (AR) for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 24.06.2013 Date of Decision: 24.06.2013 ORDER NO. Per: P.R. Chandrasekharan
The appeals, stay petitions and COD application are arising from Orders-in-Appeal No. MISC/PVR/67/NGP/2012 dated 13.12.2012 and NO. PVR/276/NGP/2012 dated 31.12.2012 passed by the Commissioner of Central Excise & Service Tax (Appeals), Nagpur.
2. The COD application has been filed for condonation of delay of 63 days. The appellant had filed an appeal against order dated 31.12.2012, wherein their appeal before the lower appellate authority was dismissed for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The appellant was directed to file an appeal against the order of pre-deposit made by the lower appellate authority vide order dated 13.12.2012; hence the delay in filing of the stay petition and appeal. Considering the reasons stated as satisfactory, the COD application is allowed and the delay is condoned.
3. The appellant M/s Dinshaw Dairy Foods Ltd. is a manufacturer of Ice-cream. For the transportation of ice-cream from the factory to various destinations, specially designed refrigerated vans were provided to the appellant by M/s R.R. Enterprises, M/s A.U. Enterprises, M/s Vellanki Transporters and M/s Shivhare Roadways. The trucks were provided along with drivers and fuel and the services were provided as per the direction of the appellant. For the consideration of the services rendered, the appellant was liable to pay transportation charges on per kilometer basis. The truck owners raised the bills in accordance with the said agreement. The Revenue directed the appellant to discharge the Service Tax liability in respect of the services received, on 25% of the consideration paid to the truck owners and accordingly, a notice was issued to the appellant demanding Service Tax of Rs.12,75,175/- along with interest thereon and also proposing to impose penalty. The demand was confirmed along with interest and penalty was also imposed. The appellant preferred an appeal before the lower appellate authority, who directed the appellant to make a pre-deposit of the amount of Service Tax confirmed which the appellant failed to do and for such failure, the appeal was dismissed by the lower appellate authority. Hence, the appellant is before us.
4. The learned Counsel for the appellant submits that the services received by the appellant does not come under the category of GTA services as defined in law, therefore, they are not liable to pay any Service Tax. He relies on the decisions of the Tribunal in the following cases: -
(i) CCE & Cus, Guntur Vs. Kanaka Durga Agro Oil Products Pvt. Ltd. 2009 (15) STR 399 (Tri-Bang).
(ii) Lakshminarayana Mining Co. Vs. CST, Bangalore 2009 (16) STR 691 (Tri-Bang).
(iii) KMB Granites Pvt. Ltd. Vs. CCE, Salem 2010 (19) STR 437 (Tri-Chennai)
(iv) Shanti Fortune (I) Pvt. Ltd. Vs. CCE, Coimbatore 2010-TIOL-321-CESTAT-MAD.
(v) Bellary Iron & Ores Pvt. Ltd. & Others Vs. CCE, Belgaum 2010-TIOL-704-CESTAT-BANG.
(vi) Subramanyasiva Co-op. Sugar Mills Ltd. Vs. CCE, Salem 2010-TIOL-1061-CESTAT-MAD.
Accordingly, he pleads for grant of stay against the impugned demand.
5. The ld. Addl. Commissioner (AR) appearing for the Revenue, on the other hand, contends that the service received by the appellant is squarely covered under the definition of GTA Service as defined under Section 65 (50b) read with Section 65(105)(zzp) of the Finance Act, 1994 and as per Rule 2(1)(d)(iv) of Service Tax Rules, 1994, the liability to pay Service Tax lies on recipient of the service and accordingly, the demand has been raised correctly. Therefore, he pleads that the appellant be put to terms.
6. We have carefully considered the submissions made by both the sides.
6.1 As per Section 65(50b) of the Finance Act, 1994, goods transport agency means any [person who] provides service in relation to transport of goods by road and issues consignment note, by whatever name called and the taxable service means, services rendered to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage. In the present case from the records, it is seen that there is no dispute that the service of transport of goods by road has been rendered using a goods carriage and the service providers, that is, transporters have raised bills on the appellant.
6.2 In view of the above, we do not find any merit in the contention of the ld. Advocate for the appellant that they have not received any GTA services. As regards the reliance placed by the learned Counsel on the decisions of the Tribunal, these decisions dealt with different situations and, therefore, we are of the view that they are not applicable to the facts of the present case and are distinguishable. Inasmuch as the Commissioner (Appeals) has not decided the appeal on merits, the matter has to go back before the lower appellate authority for giving a finding on merits of the case. However, since the appellant has not made out any case for complete waiver of pre-deposit, we direct the appellant to make a pre-deposit of 50% of the Service Tax demand confirmed, within a period of four weeks and report compliance before the lower appellate authority on 29.7.2013. On such compliance, the lower appellate authority shall decide the matter on merits after giving a reasonable opportunity to the appellant of being heard.
7. Thus, the appeals are allowed by way of remand. Stay petitions are also disposed of.
(Dictated and pronounced in Court)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
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