Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (9) TMI 422 - DELHI HIGH COURT

2015 (9) TMI 422 - DELHI HIGH COURT - 2016 (41) S.T.R. 409 (Del.) - Waiver of pre-deposit - tribunal did not follow the order of similar bench to grant full waiver - HPCL was providing Business Auxiliary Services ('BAS') to IGL with regard to the sale of CNG through the retail outlet of HPCL - CESTAT proceeded to analyse the individual clauses of the Agreement dated 31st October, 2007 between HPCL and IGL and came to prima facie, conclusion that "there is no sale of natural gas or CNG to the app .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e the decision of the Coordinate Bench of the same strength in BPCL v. CST, Mumbai required reconsideration, then the appropriate course for the Principal Bench, CESTAT to adopt would be to refer the matter to a larger Bench of the CESTAT. In any event, at the stage of considering an application for stay, the CESTAT, Principal Bench ought to have proceeded on the basis that in light of the final judgment in BPCL v. CST, Mumbai (2014 (7) TMI 159 - CESTAT MUMBAI) being favour of HPCL, it had a pri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. ('HPCL') is directed against the order dated 14th July, 2015 passed by the Customs, Excise and Service Tax Appellate Tribunal ('CESTAT') in the stay application in Appeal No. ST/59270-CU [DB] of 2013 filed by HPCL before CESTAT seeking waiver of the pre-deposit and stay of further proceedings pursuant to the adjudication order dated 10th May, 2013 passed by the Commissioner of Central Excise ('CCE') confirming a service tax demand of ₹ 1,36,15,903/- apart from int .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Business Auxiliary Services ('BAS') to IGL with regard to the sale of CNG through the retail outlet of HPCL. The CCE answered the question prima facie in the affirmative and held that the activity of HPCL in marketing or sale of CNG belonging to IGL, would fall within the ambit of Section 65 (105) (zzb) read with Section 65 (19) of the Finance Act, 1994 and, therefore, exigible to service tax. 3. Before the CESTAT, in support of its plea that there should be complete waiver of pre-deposi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hemselves buying the CNG from Mahanagar Gas Ltd. ('MGL'), the question of rendering services to MGL by way of marketing the CNG did not arise. Inter alia, it was held that 'the contention of the learned AR that private parties are paying Service Tax under the category of Business Auxiliary Service on the same activity, therefore, the Appellant are required to pay service tax is not acceptable as in the case of private parties, the invoices on the customers were raised by M/s MGL dire .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Tribunal, relying on BPCL v. CST, Mumbai (supra) held that "prima facie, we are of the view that facts of the applicants case are similar to Bharat Petroleum Corp. Ltd" and ordered a complete waiver of pre-deposit. 5. In the impugned order, the CESTAT, Principal Bench at New Delhi (of the same Bench strength as the Coordinate Bench of the CESTAT in Mumbai which passed the judgment in BPCL v. CST, Mumbai (supra), did notice the said decision but observed that it did not "appea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

above judgement/order cannot prima facie be considered as laying down a ratio which operates as a precedent." 6. In the impugned order, the CESTAT then proceeded to analyse the individual clauses of the Agreement dated 31st October, 2007 between HPCL and IGL and came to prima facie, conclusion that "there is no sale of natural gas or CNG to the appellant and sale of CNG the retail customers is by the IGL itself without an intermediary transfer of property in CNG in favour of the appli .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ests of the Revenue and HPCL, requiring the making of a pre-deposit of 50% of the assessed liability along with proportionate interest would be justified. 7. At the hearing of the present appeal on 21st August, 2015, the Court recorded the submission of Mr Devnath, learned counsel for the Appellant, that he would on the next date produce a copy of the agreement entered into between HPCL and MGL, which was the subject matter of the final order in BPCL v. CST, Mumbai. He also undertook to inform t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

present case. The Court is of the view that since a Coordinate Bench of the CESTAT while interpreting identical clauses of a similar agreement involving HPCL itself came to the conclusion that HPCL was not providing Business Auxiliary Services to MGL in carrying on the activity of providing CNG to consumers through its retail outlets, that final judgment itself constituted a prima facie case in favour of HPCL. If the Principal Bench of the CESTAT felt that the agreement between HPCL and IGL, ide .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version