TMI Blog2010 (9) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 - Dated:- 8-9-2010 - Shri R.M.S. Khandeparkar, and Shri P. Karthikeyan, REPRESENTED BY : Shri D.P. Nagendra Kumar, Jt. CDR, for the Appellant. None, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the Ld. DR for the appellant. None present for the respondents. However, the respondents have placed on record a letter dt. 14-5-2010 requesting the Tribunal to decide the matter on merits in their absence. They have brought to the notice of the Tribunal, the decisions in the matter of Andhra Pradesh Paper Mills Ltd. v. Commr. reported in 2007 (8) S.T.R. 166 (Tri.), Bhushan Power and Steel Ltd. v. Commr. reported in 2008 (10) S.T.R. 18 (Tri.), India Cements Ltd. v. Commr. reported in 2007 (7) S.T.R. 569 (Tri.) = 2008 (223) E.L.T. (Tribunal). 2. The respondents herein are the manufacturers of excisable goods and holders of Central Excise registration certificate and are also registered for payment of service tax under the category of Goods Transport Agency (GTA services). The respondents had utilized cenvat credit in relation to the payment of service tax on GTA services received by them. The Department while contending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE C, Vadodara-II reported in 2008 (12) S.T.R. 447 (Tri. - Ahmd.) while contending that the issue which arises in that matter stands referred to the Larger Bench in the said case and therefore, the present matter also to be referred to the Larger Bench. 4. Undisputedly the matter in hand relates to the period from January, 2005 to September, 2005. At the relevant time and prior to 19-4-2006, the definition clause under Rule 2(p) of the Cenvat Credit Rules carried an explanation clause to the effect that For the removal of doubts, it is hereby clarified that if a person liable for paying service tax does not provide any taxable service or does not manufacture final products, the service for which he is liable to pay the service tax shall be deemed to be the output service . 5. The said explanation clause stand deleted consequent to the amendment brought in to the said Rules under Notification No. 8/2006-C.E. (N.T.), dt. 19-4-2006. Clause 2 of the said notification states that explanation clause to Rule 2(p) of the Cenvat Credit Rules, 2004 stood omitted. In other words for the period prior to 19-4-2006, the matters will have to be considered taking note of the effect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or hearing on such point or points by one or more of the other Members of the Tribunal, and such referred point or points shall be decided according to the opinion of the majority of these members who have heard the case, including those who first heard it. (17) The provision is therefore comprised of two parts. In a case where the Bench consists of two or more than two members and there is difference of opinion amongst the members who constitute the Bench, the point of difference has to be decided according to the opinion of the majority, where there is a majority. While the latter part of the provision stipulates that where the Bench consists of two members or more than that but of even number, and the members are equally divided, it is incumbent upon such members to set out the point or points on which they differ. Upon such point or points of difference being stated a reference is required to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes, (eleventh edition) where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.[21] 9. It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its functions. 12. Taking into consideration the law laid down by the Apex court in Paras Laminates (P) Ltd. case [1990 (49) E.L.T. 322 (S.C.)], Pradip Chandra Parija v. Pramod Chandra Patnaik reported in 2002 (144) E.L.T. 7, the Larger Bench of the Tribunal in the matter of M/s. Steel Authority of India Ltd. v. CCE, Raipur [2010 (256) E.L.T. 737 (Tri. - LB)] in Excise Appeal No. 217/2007 delivered on 30-6-2010, in Amit Sales v. CCE [1990 (19) S.T.R. 815 (Tri. - LB)] in Service Tax Appeal No. 437/2002 delivered on 1-7-2010 and further taking into consideration the decision of the Apex court in the matter of Jt. Commissioner of Income Tax, Surat v. Saheli Leasing Industries Ltd. reported in 2010 (253) E.L.T. 705 (S.C.), the Larger Bench in M/s. Eastern Medikit Ltd. v. CCE, Delhi [2010 (257) E.L.T. 590 (Tri. - LB)] in Excise appeal No. 167/2008 delivered on 25-8-2010 has held that references made without proper compliance of the directions issued by the Apex court in the above referred cases is bad. Without exactly disclosing the controversy which is required to be dealt with by the Larger Bench, any reference is not maintainable and therefore number of references have been ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service from Goods Transport Operator or Agent having become liable to pay service tax, would be entitled to take the benefit of the deemed fiction, if he does not provide any taxable service or does not manufacture final product on which he could have utilized Cenvat credit. Where a person provides any taxable service or manufactures final product, he can utilize the Cenvat credit in accordance with the Rules. Cenvat credit, as defined under Rule 3(1) includes duties, tax and cess as enumerated in various clauses. The service tax liable under Section 66 of the Finance Act, 1994, can also be taken as credit by a manufacturer or producer of final product or a provider of taxable service. On a plain reading of the explanation, it would appear that, if a person is either a manufacturer or a provider of taxable service, there would be no need for making a provision for such a person by way of a deeming fiction, as is sought to be done under the explanation, because, such a taxable service provider or a manufacturer can always utilize the Cenvat credit, as per the Rules. However, where a person is neither a provider of taxable service nor does he manufacture any final product, diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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