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2009 (8) TMI 961

..... ed from M/s. Ajara SSK Ltd., Kolhapur (hereinafter referred as the appellant) against O-I-O No. 67/ADJ/STC/KOP-II/2008 dated 21-1-2009. The brief facts involved in the appeal are that the appellant, who is a co-operative unit, during the period from 16-11-1997 to 1-6-1998, on behalf of cane growers members, paid charges of Rs. 75,26,756/- to the transporters for transportation of sugarcane from their farms to the factory gate of the appellant; that the appellant was issued with SCN-cum-demand notice dated 6-5-2002 directing the appellant to show cause as to why the Service tax of Rs. 3,76,347/- along with interest under Section 75 of the Finance Act, 1994 (hereinafter referred as the Act) and penalty under Section 78 of the Act should not b .....

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..... same from the payment to be made to the cane growers, holding the appellant liable to pay service tax on the said freight will be unjust and arbitrary; (ii) that without prejudice to the above, the appellant submits that for the same amount and for the same period, the Department has also issued another SCN dated 6-5-2002 which, on confirmation by the Assistant Commissioner and the Commissioner (Appeals), the appeal filed before the CESTAT was allowed and hence, the second SCN dated 8-11-2004 is not sustainable and the appellant relies on the decision of the Tribunal in the case of CCE v. Sidharth Tubes Ltd. - 2004 (170) E.L.T. 331 and Commissioner (Appeals) s Order No. 60/2007 dated 30-4-2007; (iii) that the subsequent SCN-cum-Demand Notic .....

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..... t, being the receiver of the GTO services, was made liable to pay Service tax during the period from 16-11-1997 to 1-6-1998, was issued with a SCN dated 6-5-2002, which was adjudicated and confirmed by the Assistant Commissioner and on an appeal, being rejected by the Commissioner (Appeals), the appellant approached the CESTAT, who vide its order dated 20-9-2005 allowed the appeal of the appellant by following the decision of the Apex Court in the case of CCE, Meerut-II v. M/s. L. H. Sugar Factories Ltd. - 2006 (3) S.T.R. 715 (S.C.) = 2005 (187) E.L.T. 5 (S.C.); that being the facts of the case, the appellant was again issued with another SCN dated 8-11-2004 covering the same amount and the same period which has been adjudicated by the Assi .....

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..... E, Vadodara v. Gujarat Carbon & Industries Ltd. - 2008 (12) S.T.R. 3 (S.C.) confirming its earlier decision in the case of CCE, Meerut-II and Others v. M/s. L.H. Sugar Factories Ltd. supra, rejected the departmental appeal. However, as already stated that the demands confirmed against the appellant along with interest and penalty imposed under various sections on the appellant is not sustainable, in as much as, the same issue was decided by the CESTAT vide its order dated 20-9-2005 setting aside the Commissioner (Appeals) order dated 31-3-2005 which had upheld the decision of the lower authority passed vide his O-I-O No. KOP-II/ADJ/STC/2002, dated NIL. Even otherwise, as claimed by the appellant, the second SCN covering the same issue a .....

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