9911796707
TMI Blog2012 (7) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, as per their agreement with IOCL received an amount of Rs.760/- per KL (for lubes)/MT(for greases) of sales /dispatch ex-godown. According to the Department, the services being provided by the appellant to the IOCL were clearing & forwarding agent's services, as defined under Section 65(25) of the Finance Act, 1994 and taxable under Section 65(105)(i) ibid, but the appellant had neither obtained service tax registration nor were paying any service tax. A show cause notice dated 25.3.2004 was, therefore, issued to the appellant for - (a) demand of service tax amounting to Rs.5,43,618/- from the Appellant on an amount of Rs.94,38,446.84 received by them from IOCL for providing the above mentioned services for the period 1.3.2000 to 31.12.2003, along with interest on it at the applicable rate under Section 75 of the Finance Act, 1994; and (b) imposition of penalty on the appellant under Section 75A, 76, 77 and 78 of the Finance Act, 1994. 1.1 In the course of adjudication proceedings before the Asstt. Commissioner, the appellant pleaded that the rate of Rs.760/- per KL being charged by them from IOCL for various charges also includes reimbursable expenses like godown re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after excluding the reimbursable expenses. 6. Shri K.K. Jaiswal, ld. Departmental Representative pleaded that as is clear from the note sheet of the Commissionerate file from which the review order had been issued, the Commissioner had signed the review order on 8.12.2006 and it is only the fair copies of the order, which were issued on 29.12.2006, that in view of this, the review of the Assistant Commissioner's order has been done in time, that on merits, the issue involved in this case stands decided against the appellant by the judgement of the Tribunal in the case of CCE, Chandigarh Vs. Team S & S reported in 2011 (21) STR 290 (Tribunal-Delhi) and Naresh Kumar & Cop. Pvt. Ltd. reported in 2008 (11) STR 578 (Tribunal-Kolkata), wherein it was held that in case of C & F Agent services, the tax is chargeable on the gross amount charged and no deduction on account of godown rent, house keeping, courier expenses, electricity, staff remuneration, loading and unloading charges, etc. is admissible and that in view of this, there is no infirmity in the impugned order. 7. We have carefully considered the submissions from both the sides and perused the records. The main plea of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew. Hon'ble Supreme Court in the case of CCE vs. M.M. Rubber Co. reported in 1991 (55) E.L.T. 289 (S.C.) while interpreting the scope of the expression "the date of the decision or order of the adjudicating authority" in sub-Section (3) of Section 35E of the Central Excise Act, 1944 has in para 12 and 13 of the judgment held as under :- "12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made; that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.M. Rubber Co. (supra) is that when a time limit is prescribed under Section 35E for the reviewing authority to exercise its review power, the same must be exercised within the limitation period and order passed after the expiry of limitation period would be invalid and ineffective. In this regard, para 17 and 18 of the judgment are reproduced below. "17. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo motu power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision. 18. Section 35E comes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. As discussed in para 9 & 9.1 above the date of passing the review order by the Commissioner under sec 84 would be the date on which he ceases to have any locus poenitentiae and the matter can be said to have left his hand, which would be the date of dispatch of the order. 12. In this case, we find that since the Assistant Commissioner's order has been passed on 15/12/04, in view of the provisions of sub-Section (5) of Section 84, the review order should have issued within a period of 2 years i.e. by 14/12/06, while in this case, we find that while the order was signed on the note sheet of the review file on 8/12/06, the fair copy of the order for issue/distatch was signed only on 29/12/06. Though the endorsement regarding dispatch signed by the Superintendent (review) and enclosed with the order bears the date "8/12/06" below the signatures of the Superintendent, forwarding of the fair copy on 8/12/06 would be impossible when the fair copy itself was signed on 29/12/06. Moreover, on the endorsement sheet it can easily be seen that the actual date of dispatch was on in January 2007, which was corrected to 8/12/06 by hand. Since it is clear that the order to be dispatched was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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