Custom, Excise & Service Tax Tribunal
M/S. Boc India Limited vs Commissioner Of Service Tax, Kolkata on 3 February, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.ST/S/33/2012
AND
SERVICE TAX APPEAL NO.ST/A/20/2012
(ARISING OUT OF ORDER-IN-APPEAL NO.315/ST/KOL/2011 DATED 10.10.2011 PASSED BY COMMISSIONER OF CENTRAL EXCISE: APPEAL-I: KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
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 should 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. BOC INDIA LIMITED
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF SERVICE TAX, KOLKATA
...RESPONDENT (S)
APPEARANCE:
SHRI G.AGARWAL, CA FOR THE APPLICANT(S)/APPELLANT(S);
SHRI A.ROY,A.R.(SUPDT.) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:03.02.2014 ORDER NO.FO/A/75041/2014 Per Dr. D.M.Misra This is an Application seeking waiver of predeposit of Service Tax of Rs.9.11 lakh and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.
2. Ld. Chartered Accountant for the Applicant submits that during the period, 2006-07, the Applicant had availed the services of Goods Transport Agency, and accordingly, were required to discharge the service tax as per Rule 2(d)(iv)of the Service Tax Rules, 1994. The Applicant had paid the service tax after availing the abatement as allowed under Notification No.01/2006-ST dated 01.03.2006. This issue involves service tax demand of Rs.6.8 lakh, and the balance amount of Rs.2.3 lakh relates to payment of service tax by utilization of CENVAT Credit availed during the said period, which had been denied to them on the ground, that the same were not admissible. As far as the first issue is concerned, it is his submission that the same is covered by the decision of this Tribunal in the case of Indian Oil Corporation Ltd. vs. CCE, Patna, 2013(29) STR 524 (Tri.-Kol.) and by the judgment of the Honble Gujarat High Court in the case of CST, Ahmedabad vs. Cadila Pharmaceuticals Ltd., 2012(27)STR 127(Guj.). He submits that even though each and every consignment note issued by the GTA service provider does not bear the required declaration, but in the general declaration issued by the respective GTA providers, it has been mentioned about non-availability of the benefit of Notification No.12/2003-ST dated 20.06.2003 and/or CENVAT Credit on inputs/capital goods by the said GTA service providers. Regarding the second issue, the ld. Advocate submits that in their own case, subsequently, the Department had allowed the benefit of utilization of CENVAT Credit for the subsequent period and in support, he has referred to the Order-in-Original No.47/ST/DIV-III/Adjn./09-10 dated 23.09.2009.
3. Per contra, ld. AR for the Revenue submits that the aforesaid Order dated 23.09.2009 passed by the concerned Adjudicating Authority was not before the ld. Commissioner (Appeals). He has no objection in remanding the matter to the ld. Commissioner (Appeals) for the deciding the issue afresh.
4. After hearing both sides, we find that the Appeal itself could be decided, at this stage. Consequently, after waiving the requirement of predeposit of the dues adjudged, we take up the Appeal itself for disposal, with the consent of both sides.
5. We find that the issues involved in the present Appeal relate to (i) availment of abatement under Notification No.01/2006-ST dated 01.03.2006; and (ii) utilization of CENVAT Credit towards the payment of service tax on GTA service. The first issue is prima facie covered by the judgment of this Tribunal in the case of IOCL (supra); and on the other issue, the Applicants claim that for the subsequent period, the Department had accepted the payment of service tax for the relevant period for utilization of CENVAT Credit. Since the subsequent Order of the Adjudicating Authority was not before the ld. Commissioner (Appeals) and also the ld. Commissioner (Appeals) had not taken into consideration the principle of law settled on the availability of abatement under Notification No.01/2006-ST dated 01.03.2006, it is prudent to remand the matter to the ld. Commissioner (Appeals) for deciding both the issues afresh, without insisting any predeposit. In the result, the case is remitted to the ld. Commissioner (Appeals) for deciding the case on merit afresh. Needless to mention that a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. The Appeal is allowed by way of remand. Stay Petition disposed of.
(Dictated and pronounced in the open court.)
Sd/- Sd/-
(I.P.LAL) (D.M.MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
DUTTA/
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ST/A/20/2012
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