Custom, Excise & Service Tax Tribunal
M/S. Food Corporation Of India vs Commissioner Of Central Excise & ... on 23 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-22/2012
&
Appeal No.ST-17/2012
(Arising out of Order-in-Original No.22/ST/AYUKTA/2009 dated 28.10.2009 passed by the Commissioner of Central Excise & Service Tax, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M.MISRA, MEMBER(JUDICIAL)
HONBLE SHRI H.K.THAKUR, 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 should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Food Corporation of India
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise & Service Tax, Patna
Respondent (s)
Appearance:
Shri Alok Kr. Ghosh & Shri N.K.Chowdhury, Advocate for the Appellant(s) Shri S.S.Chatterjee, Supdt.(AR) for the Revenue CORAM:
Honble Dr. D.M.Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical) Date of Hearing :- 23.11.2015 Date of Pronouncement :- 23.11.2015 ORDER NO.SO/76376/2015 & FO/A/75685/2015 Per Dr. D.M.Misra.
1. This is an application seeking waiver of pre-deposit of Service Tax of Rs.70.80 Lakhs and penalty of Rs.1.41 Crores under section 78, penalty of Rs.1,000/- under section 77 and under penalty under section 76(not quantified) of the Finance Act, 1994.
2. At the outset, the ld.Advocate for the applicant submits that the applicant are recipient of taxable service under the category of Goods Transport Agency(GTA) service as defined under section 65(15b) of Finance Act, 1994. The demand of service tax of Rs.70,80,171/- for the period 2004-05 to 2007-08 has been confirmed denying the benefit of Notification No.32/2004-ST dated 03.12.2004. It is the contention of the ld.Advocate that the benefit of the said Notification was denied on the ground that the applicant had failed to produce declarations in the respective consignment note issued by the GTA service providers indicating therein that the service provider had not availed the benefit of either CENVAT Credit or the benefit of exemption Notification No.12/2003-ST dated 20.06.2003. It is his contention that even though necessary general declarations later issued by the GTA service providers were placed before the ld.Commissioner during the course of adjudication proceeding, but the same was not considered and the demand was confirmed. It is his contention that this Tribunal has already decided the issue in favour of the assessee in the case of Indian Oil Corporation Ltd. v. CCE, Patna 2013 (29) S.T.R. 524(Tri.-Kolkata) where general declaration was accepted in lieu of declaration in each consignment note issued by the GTA service provider. However, he could not place the declarations issued by the GTA service providers before the Tribunal.
3. The ld.AR for the Revenue reiterated the findings of the ld.Commissioner. It is his contention that since the applicant could not place the declarations before this Tribunal, hence the case may be remanded to the ld.Commissioner for scrutiny of those declarations. He has no objection in remanding the case.
4. After hearing both sides for some time, we find that the appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for disposal with the consent of both the sides.
5. We find that the limited issue involved in the present case is whether the appellant are eligible to the benefit of Notification No.32/2004-ST dated 03.12.2004 in discharging Service Tax for receiving taxable service under the category of GTA Service. Both the sides agree that the issue is no more res integra in view of the decision of this Tribunal in IOCLs case (supra). However, since the appellant could not able to place before this Tribunal sample copies of declarations filed in claiming the benefit of said Notification No.32/2004-ST, the matter is remanded to the ld. adjudicating authority for the limited purpose to scrutinize and consider said declarations in extending the benefit of Notification No.32/2004-ST dated 08.12.2004. In the result, the impugned order is set aside and the appeal is allowed by way of remand. Stay Petition disposed of.
(Operative part of the order was pronounced in the open court.) SD/ SD/ (H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 4 Appeal No.ST-17/2012