TMI Blog2011 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... scretion of the learned authorities under the Act to consider other mode and manner of evidence to consider the claims of the benefit of abatement - it was extremely difficult for the assessee to obtain declaration by G.T.A. on the consignment note, not being a mandatory condition - Decided in the favour of assessee - 620 OF 2009 - - - Dated:- 29-4-2011 - MR. JUSTICE SUDHIR KUMAR KATRIAR, MR. JUSTICE SAMARENDRA PRATAP SINGH, JJ. For the Appellant :Mrs. Nivedita Nirvikar, Advocate. For the Respondent : Mr. Vikash Jain, Sr. Advocate. Mr. Rakesh Kumar Singh, Advocate. S. K. Katriar, J. The Department of Central Excise, Government of India, has preferred this appeal under Section 35G of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, clarifying the position that the benefit of exemption of abatement of tax to the extent of 75 percent shall be available to the goods transport agency (hereinafter referred to as the G.T.A), the service provider, being the carrier, and not to consignor and consignee. In view of this clarificatory circular, the assessee deposited a further sum of Rs.1,08, 153/- on 6.5.2005. He deposited a further sum of Rs. 3,442 on 12.5.2005 by way of interest on the delayed deposit. 2.2. This was followed by another clarificatory circular no. B1/6/05-TRU, dated 27.7.2005, which in substance provided that the benefit of abatement of tax to the extent of 75 percent shall be available to the consignors and consignees also. It was further clarified tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order-in-Revision dated 28.5.2008, and order no. M-173/Kol/2009 dated 12.6.2009 rejecting the Miscellaneous Application for Rectification of Mistake of the Revenue in the matter, are legal and correct? (ii) Whether, by an order passed under section 35K of Central Excise Act 1944, Hon ble High Court should set aside the order passed by the Hon ble CESTAT (EZB), Kolkata and the case of the Revenue may be remanded to Hon ble CESTAT (EZB) Kolkata for decision with proper analysis of the provisions of law? 4. Learned counsel for the parties have advanced elaborate submissions in support of their respective stand. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es where liability for tax payment is on the consignor or consignee, the procedure as to how it should be confirmed by such consignor or consignee that the goods transport agency has not availed credit or benefit of notification No.12/2003-Service Tax may be prescribed. In such cases it is clarified that a declaration by the goods transport agency in the consignment note issued, to the effect that neither credit on inputs or capital goods used for provision of service has been taken nor the benefit of notification No.12/2003-Service Tax has been taken by them may suffice for the purpose of availment of abatement by the person liable to pay service tax (Emphasis added) 6. It is thus evident that confusion was created by the redundant ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, left with other mode and manner of proof to claim the refund. 7.1. It is evident on a perusal of the relevant portion of the circular dated 27.7.2005, extracted hereinabove, that the declaration by the G.T.A. on the consignment note is not in mandatory terms, and is to the effect that such declaration by the G.T.A. on the consignment note may suffice. In other words, it is open to the discretion of the learned authorities under the Act to consider other mode and manner of evidence to consider the claims of the benefit of abatement. Sample copies of the certificates issued by the G.T.A, which were furnished before the learned Adjudicating Officer while claiming refund, are on record, and appears to the effect that such abatement ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents are lumped together, for in such a case, if mandatory requirement are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. If the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. 9. In view of the position that the situation of confusion brought about by the Department, coupled with the bona fides of the assessee, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
