Custom, Excise & Service Tax Tribunal
Cce, Ghaziabad vs M/S Goyal M.G. Gases (Pvt.) Ltd on 22 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING/DECISION : 22/05/2014. Service Tax Appeal No. 813 of 2008 with C.O. No. 50 of 2009 [Arising out of the Order-in-Appeal No. 128-CE/GZB/2008 dated 30/06/2008 passed by The Commissioner (Appeals), Customs & Central Excise, Ghaziabad.] For Approval and signature : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) 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 : Department Authorities? CCE, Ghaziabad Appellant Versus M/s Goyal M.G. Gases (Pvt.) Ltd. Respondent
Appearance Shri Jayant Sahay, Authorized Representative (DR) for the appellant.
S/Shri B.L. Narasimhan and Narendra Kumar Singhvi, Advocates for the Respondent.
CORAM : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 52617/2014 Dated : 22/05/2014 Per. Rakesh Kumar :-
The facts leading to filing of this appeal by the Revenue and Cross Objection by the respondent are, in brief, as under.
1.1 The respondent are manufacturers of various gases including liquid oxygen which is sold by them in cylinders as well as in cryogenic tankers. It was found that the respondent had entered into agreements with their customer Kailash Hospitals and Research Centre (KHRC), Noida for supply of liquid oxygen and also its storage in the hospital premises in the cryogenic tanks provided by them and that for the facility of storage of liquid oxygen in the hospital premises, the respondent were charging a specified amount per month. The Department was of the view that the respondent have provided storage and warehousing service to their clients, which is taxable under Section 65 (105) (zza) readwith Section 65 (102) of Finance Act, 1994. It is on this basis that after issue of show cause notice, the Additional Commissioner, Central Excise, Ghaziabad vide order-in-original dated 28/09/07 confirmed the service tax demand of Rs. 19,31,506/- against the respondent alongwith interest thereon under Section 75 and beside this, imposed penalties on them under Section 75A, 76, 77 and 78 of the Finance Act, 1994. The service tax demand had been confirmed by the Additional Commissioner for the period from 16/08/02 to 31/3/07. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) vide order-in-appeal dated 30th June 2008 set aside the Additional Commissioners order and allowed the appeal on the ground that the service provided by the respondent to KHRC is not storage or warehousing service as the appellant in respect of the liquid oxygen stored in the premise of KHRC cannot be said to be warehouse keeper. The Commissioner (Appeals) in this also observed that the respondent had supplied the cryogenic storage tank to KHRC for installation in their premises and the installation of the tank was to be done by KHRC. She also observed that the storage tanks which are cryogenic storage tanks for the storage of liquid oxygen had been purchased from the respondent by KHRC and, therefore, it is totally wrong to treat the respondent as warehouse keeper in respect of the liquid oxygen stored in those tanks. Against this order of the Commissioner (Appeals) while the Revenue has filed the appeal, the respondent have filed Cross Objection.
2. Heard both the sides.
3. Shri Jayant Sahay, the learned DR, assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal and pleaded that since the respondent, in terms of their agreement with their customer M/s KHRC, were maintaining the liquid oxygen storage tank and arranging for its inspection by the approved agency under the Explosives Act, the respondent have to be treated as warehouse keeper in respect of the liquid oxygen gas stored in the tank.
4. Shri B.L. Narasimhan, Advocate, the learned Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that when the liquid oxygen storage tank had been supplied by the respondent to their client M/s KHRC and they were responsible only for maintenance of the storage tank and, as such, the liquid oxygen gas stored in the storage tanks was not in the respondents custody, the respondent cannot be treated as warehouse keeper in respect of the liquid oxygen gas stored in the tank and, therefore, no service covered under Section 65 (105) (zza) had been provided. He, therefore, pleaded that there is no infirmity in the impugned order.
5. We have considered the submissions from both the sides and perused the records.
6. The undisputed facts are that the respondent are manufacturers of various gases including medical grade liquid oxygen which during the period of dispute was supplied to KHRC, Noida. There is also no dispute the respondent had also supplied storage tank to KHRC and in terms of their agreement with the hospital were responsible for its maintenance of the tank and its regular inspection as per the provisions of Explosives Act. The oxygen gas sold by the respondent to KHRC was being stored in the tank and as such the same was in the custody or control of the hospital. Therefore, the respondent cannot be treated as storage or warehouse keeper in respect of the oxygen stored in the tank installed in the premises of KHRC. In view of this, we do not find any infirmity in the impugned order. The Revenues appeal is dismissed. The Cross Objection filed by the respondent also stands disposed of.
(Operative part of the order pronounced in the open court.) (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) PK ??
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