TMI Blog2015 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ng prima facie, conclusion, therefore, was that the activity of BPCL in marketing without IGL would be exigible to service tax. Held that:- If the Principal Bench of the CESTAT felt that the agreement between HPCL and IGL, identical to the agreement between HPCL and MGL, called for a different interpretation, and that therefore 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before the CCE was whether in terms of the said agreement it could be said that HPCL was providing 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-deposit, HPCL relied on the final judgment dated 4th June 2014 passed by the Mumbai Bench of the CESTAT in Bharat Petroleum Corporation Ltd. and Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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 appear to have examined the terms of the agreement between the retail petroleum outlet, the appellant therein and MGL in sufficient detail and proceeded on an assumption that there was an anterior sale of CNG to the appellant therein'. Similarly, as regards the interim order in IOCL v. CST, Delhi (supra), the CESTAT observed that in the said order too there was no examination and analysis of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the final order in BPCL v. CST, Mumbai. He also undertook to inform the Court whether any appeal had been filed against the said order. 8. The Court has today been shown the copy of the Agreement dated 7th December, 2009 entered into between MGL and HPCL together with the earlier renewal agreements containing the relevant clauses. The Court notices that the agreement which formed the subject matter of the final order of the CESTAT, Mumbai Bench in BPCL v. CST, Mumbai (supra) is identical to the agreement between HPCL and IGL which forms the subject matter of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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