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2016 (1) TMI 889 - CESTAT MUMBAI

2016 (1) TMI 889 - CESTAT MUMBAI - TMI - GTA service - Denial of benefit of 75% exemption in respect of GTA services for want of an endorsement on the consignment note to the effect of non availment of Cenvat credit and Notification No. 12/2003-ST on consignment note of the transporter. - exemption notification No. 32/2004-ST - Held that:- We find that in the various judgments, issue in question has been settled that the assessee where liable to pay service tax could not be insisted upon to prod .....

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Shri Mayur Shroff, Adv. For the Respondent : Shri. A.B. Kulgod, Asstt. Commissioner (A.R.) ORDER Per: Ramesh Nair: These two appeals are directed against Order-in-Original No. 05/DEM/ST/VAPI/2011 dtd. 31/1/2011 passed by the Commissioner of Central Excise & Service Tax, Vapi, wherein Ld. Commissioner confirmed the demand of ₹ 65,93,433/- and dropped the demand of ₹ 8,86,990/- and also demanded interest under Section 75 and equal amount of penalty of ₹ 65,93,433 under Sectio .....

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iding such taxable services, has been taken under the provisions of Cenvat Credit Rules, 2004 or the Goods Transport Agency has availed the benefit under Notification No. 12/2003-ST dated 20/6/2003. In the show cause notice, it was alleged that the assessee has not complied with the said two condition of the notification and accordingly proposed the denial of exemption notification No. 32/2004-ST. The assessee during the adjudication submitted declaration of almost all the transporter wherein it .....

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ration can be accepted only till the date of issue of Board Circular No. B1/6/2005-TRU dated 27/7/2005 subsequent to that period the assessee should have obtained declaration to the effect of non availment of credit and Notification No. 12/2003 from the transporter on the consignment note. With this view the demand pertains to the period 28/7/2005 onward has been confirmed. Aggrieved by the impugned order, assesse and Revenue filed these appeals. In the appeal of the Revenue, it was contended th .....

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ment on the consignment note to the effect of non availment of Cenvat credit and Notification No. 12/2003-ST on consignment note of the transporter. He submits that whether the declaration to be given on consignment note, this requirement are only prescribed by way of Board Circular and not provided in the notification. Therefore non compliance of procedural requirements cannot be the reason for denial of exemption notification particularly when no such condition was prescribed in the notificati .....

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d the demand. Ld. Counsel placed reliance on the following judgments: (a) Commissioner Vs. Neral Paper Mills Ltd [2010 (20) STR 601 (Guj)] (b) Indian Oil Corporation Ltd. Vs. CCE, Mumbai II [2011 (22) STR 282 (Tri. Mum)] (c) Commissioner of Central Excise, Vapi Vs. Unimark Remedies Ltd. [2009 (15) STR 254 (Tri. Ahmd)] (d) Commissioner of Central Excise Visakhapatnam S. A.P. Paper Mills Ltd [2010 (17) STR 242 (Tri. Bang)] (e) Commissioner of C. Ex. Rajkot Vs. Sunhill Ceramics Pvt. Ltd. [2008 (9) .....

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Ld. A.R. further submits that as per Notification No. 32/04-ST, the assessee is under obligations to satisfy the conditions that the transporter, who provided services has not availed the Cenvat credit and the benefit of Notification No. 12/2003-ST which was not complied with by the assessee therefore they are not entitled for the exemption provided under Notification No. 32/2004-ST. As regard the department's appeal. Ld. A.R. reiterating the ground of appeal submits that ingredients of impo .....

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ied that Cenvat credit and Notification No. 12/2003-ST were not availed by them on the ground that Board in the F.No. 137/154/2008-CX-4 dated 21/8/2008 clarified that the declaration is acceptable only up to 27/7/2005 and not thereafter. We find that the notification only contained the condition that GTA should not avail the Cenvat credit on input or capital goods and should also not avail exemption Notification No. 12/2003-ST. The notification does not prescribe any condition regarding submissi .....

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assessee from GTA and produced before the Adjudicating authority. The whole objective of the Board clarification and also condition of the notification is only to ensure that GTA has not availed the Cenvat credit and/or notification no. 12/2003-ST, whether such endorsement either given on the consignment note or independently by way of certificate /affidavit or on letter head by GTA is sufficient compliance, in our view both will suffice as far as compliance of the condition of the notification .....

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Cenvat credit and/or Notification No. 12/2003-ST. For this reason also whole proceedings right from show cause notice to adjudication gets vitiated. 6.2 We also find that assessee in the present case has discharged the service tax, in accordance with the statutory provisions made for payment of service tax on reverse charge mechanism. Under this provision the assessee's status is of deemed service provider. The exemption notification is availed by the assessee in the capacity of deemed servi .....

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used for providing services of GTA, therefore in our view, condition of the notification stands complied with. We have gone through judgments cited by the Ld. Counsel, wherein it was held as under: Commissioner Vs. Neral Paper Mills Ltd 6. The Commissioner (Appeals), in his order, at length discussed this issue and found that the exemption is provided by way of notification and the Board can prescribe the procedure for availing the benefit of the said exemption notification. The Commissioner (Ap .....

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. The Tribunal has, by referring to the judgment of the apex court in the case of CCE v. Dhiren Chemical Industries, 2002 (139) E.L.T. 3 (S.C.), confirmed the order of the Commissioner (Appeals) and dismissed the appeal filed by the revenue. 8. We do not find any infirmity in the impugned orders passed by the authorities below since the issue decided is based on the Departmental Circular as well as the decision of the Apex Court. We are, therefore, of the view that no question of law, much less .....

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discharged the service tax in terms of Section 68(2) of the Finance Act, 1994. The assessee is entitled to the abatement denied to it as per the impugned order as per the decision in the case of Sunhill Ceramics Pvt. Ltd. (supra). Commissioner of Central Excise, Vapi Vs. Unimark Remedies Ltd. 2. Shri Nilesh M. Desai, Asst. Manager has appeared on behalf of the respondents and reiterated the findings of Commissioner (Appeals). I find that the Commissioner (Appeals) order is well reasoned and is .....

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t the appeal filed by the Revenue. (d) Commissioner of Central Excise Visakhapatnam s. A.P. Paper Mills Ltd [2010 (17) STR 242 (Tri. Bang)] 6. On a careful consideration of the submissions made by the learned DR and perusal of the impugned order, we find that the Commissioner (Appeals) has recorded the following findings: 6. I have carefully gone through the case records and considered the rival contentions. The issue before me is whether abatement of 75% on the freight charges is available to t .....

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taxable service has been taken under the provisions of the Cenvat Credit Rules, 2004. In terms of Notification No. 35/2004-S.T., dated 3-12-2004, it has been added that in relation to taxable service provided by a goods transport agency, whether the consignor or consignee of goods is either a factory, company, corporation, society, co-operative society, dealer of excisable goods or any body corporate, any person who pays or is liable to pay freight either himself or through his agent for the tr .....

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been taken by them may suffice for the purpose of availment of 75% abatement by the person liable to pay service tax. Therefore the law is very clear on this issue. As seen from the impugned order, it is observed that the appellants had provided copies of some declarations provided by the transport agencies which were not accepted by adjudicating authority on the issue that the declarations should be on the individual consignment notes. In my opinion, instead of simply not accepting these declar .....

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for compliance with notification conditions - Deemed service provider Benefit of Notification No. 32/2004-S.T. sought to be denied as declaration not produced on nonavailment of Cenvat credit of duty paid on inputs or capital goods by transporter. Condition of non-availment of credit related to services rendered by transport agency . Respondent as consignor not rendered transport service and not availed credit on inputs/capital goods for providing such service Impugned order of Commissioner (Ap .....

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re neither the consignee nor consignor is required to pay the service tax, the responsibility for paying service tax continues with the concerned Goods Transport Agency. The condition of not taking credit of duty paid on inputs of capital goods used for providing such taxable service necessarily should relate to the services actually rendered by the Transport Agency. The respondent has not actually rendered the said services; as a consignor he has not availed the credit of duty paid on inputs of .....

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ove re-produced portion that the Commissioner (Appeals) has followed the law as settled by various decisions of the Tribunal. In the grounds of appeal, the Revenue has not brought out any evidence contrary to the findings which has been recorded by the Commissioner (Appeals). In view of this position, we find that the impugned order is correct and does not suffer from any infirmity. The appeal filed by the Revenue is rejected. The stay petition and the appeal are disposed of in the above terms. .....

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ds Transport Agency. The condition of not taking "credit of duty paid on inputs of capital goods used for providing such taxable service" necessarily should relate to the services actually rendered by the Transport Agency. The respondent has not actually rendered the said services; as a consignor he has not availed the credit of duty paid on inputs of capital goods for providing such taxable services; the respondent merely paid the tax which, in the normal course, should have been paid .....

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Cenvat credit but it is implied that when the transporter has not paid any Service Tax, question of availment of input/input Service Tax credit does not arise. In view of these observations, we do not find any merit in the impugned order. Therefore, impugned order is set aside and the appeal is allowed with consequential relief, if any. Commissioner of S.T. Ahmedabad Vs. Cadila Pharmaceuticals Ltd. 4. We have considered the submissions. Notification No.32/2004-ST, dt.03.12.04 provides for abatem .....

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to whether the conditions are fulfilled. The Board had clarified that the endorsement has to be made on the consignment note. Further, we have to take note of the fact that the notification, as such, does not stipulate any such condition. Notification requiring the receiver of the service to pay the tax and also does not stipulate any such condition. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights. It is no .....

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any merit in the appeal filed by the Revenue and reject the same Commissioner of Service Tax, Ahmedabad Vs. Cadila Pharmaceuticals Ltd. 4. Tribunal also held that the requirements prescribed by the Board's Circular was not mandatory and it was working out modality for implementing provisions of law for denial of substantive rights, use of the same cannot be made. Tribunal has dealt with this issue as follows: The respondents are paying the service tax as per the reverse charge mechanism and .....

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on. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights. It is not the case of the Revenue that the appellants have not received the service or service tax has not been paid. Therefore, we find that the Commissioner's order is just and fair and does not require any interference. Further, as rightly pointed out in the absence of an appeal against the Tribunal's order, remanding the matter for verificatio .....

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neral declaration instead of consignment-wise declaration by assessee declaring that cenvat credit is not available. Against the decision of the competent authority dated 7-1-2009, the Commissioner (Appeals) allowed the appeal of the assessee holding that assessee is eligible to claim the benefit of exemption on the ground that procedure was substantially complied with as provided in Notification dated 3-12-2004. The Tribunal concurred with the view of the Commissioner (Appeals) and dismissed th .....

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