Customs, Excise and Gold Tribunal - Delhi
Kec International Ltd. vs Cce on 26 July, 2006
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against order in appeal dated 27/12/2005 which upheld the order in original dismissing the refund claim of the appellant.
2. The relevant fact that arise for consideration are appellants had availed the services of goods transport operators for the period 16/11/97 to 02/06/98 and were liable to pay service tax on such services. The appellants on there own calculated the amount of service tax payable by them and deposited vide TR-6 challan in the government treasury. Subsequently, they filed the refund claim for the service tax paid by them on the ground, that the Hon'ble Supreme Court has held in the case of L.H. Sugar Factories Ltd. that such tax is riot payable. Adjudicating authority rejected the refund claim and on an appeal, Commissioner (Appeal) also held the same views.
3. None appeared for the appellant when the matter was called out in the first session but there was a request by the clerk of the advocate for pass over. The matter was passed over to the afternoon session and when the matter was again Called out, none appeared for the appellant.
4. Heard the learned DR.
5. Considered the submissions made by learned DR. and perused the records. I find from the records that the appellants were never issue a show cause notice or the demand of the service tax on the services received by him from goods transport operators. The amount of service tax paid by the appellant through TR-6 challan is based on there own self-assessment. The said amount has been deposited by them vide TR-6 challan without any request or direction from the department, albeit the amount is paid under protest. To my mind, this amount, which has been paid by the appellants, would get covered under the self-assessment and discharge of service tax liability by the assessee. Identical issue in respect of the service tax refund paid on the goods transport operators services by self assessment was before the Division Bench in the case of J.K. Industries Limited v. Commissioner of Central Excise, Indore as reported at 2006 (3) [S.T.R. (14) (Tri. -Del.)], wherein the Division Bench at paragraph number '9' held as under:
The service tax paid on the basis of self-assessment as per the statutory provision was a valid collection of tax by the government and therefore, it was in no way refundable to the appellant who was liable to pay the same under the amended provisions.
6. I find that the issue involved in this case is squarely covered against the appellants by the decision of the Division Bench as regards the merits of the goods.
7. Another point, which has been raised by the appellants in their appeal memoranda, is that they are exempted from the category of the persons who are liable to pay service tax received from goods transport operators by virtue of Notification No. 43/97. The said notification reads as under:
In exercise of the powers conferred under Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts taxable service provided by a goods transport operator from the levy of service tax on taxable service rendered by such operator to a customer in relation to carriage of goods by road, where the freight for such carriage is paid or is liable to be paid by any person or his agent, other than -
(i) any factory registered under or governed by the Factories Act, 1948 (63 of 1948);
(ii) any company established by or under the Companies Act, 1956 (1 of 1956);
(iii) any corporation established by or under any law;
(iv) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India;
(v) any co-operative society established by or under any law;
(vi) any dealer of excisable goods who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder;
(vii) any person who is registered with any Sales Tax Authority and whose turnover had exceeded Rs. 50 lakhs in the preceding financial year.
This notification shall come into force on the 16th day of November, 1997.
Notification No. & Date Amendment Date of effect of amendment 1 2 3 G.S.R. 639 (E), dated the 5th November, 1997 143/97-Service Tax, dated 5th November, 1997 In the said notification, in the opening paragraph, -
(a) for Clauses (i) and (ii), the following clauses shall be substituted, namely:
"(i) any factory registered under or governed by the Factories Act, 1948 (63 of 1948), other than a factory registered as small scale industry with the State Government
(ii) any company established by or under the Companies Act, 1956 (1 of 1956), other than a company which is solely and exclusively a trading company and is also registered as a private limited company,";
(b) Clause (viii) shall be omitted.
16th November, 1997 The above notification was amended by the twelfth schedule issued under Section 160 (1) of the Finance Act, 2003 which reads as under:
8. It is the contention of the appellant that they would fall under the category of (vii) as being the company, registered with sales tax authority and whose turnover has exceeded Rs. 50,00,000/- (Rupees Fifty Lakhs only) in the preceding financial year. To my mind, this argument looks fallacious on the face of it, in as much that the appellant in this case is a limited company and will, get covered under the Clause (ii) of the Notification as being "any company established under the Company's Act 1956." Hence, on this ground also, the appellant's appeal fail miserably.
9. Accordingly, I do not find any merit in the appeal filed by the appellant. Appeal is dismissed.
(Dictated and pronounced in the open court)