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M/s. United Cargo Transport Services Versus The Customs, Excise and Service Tax Appellate Tribunal, The Commissioner of Service Tax

2016 (1) TMI 1064 - MADRAS HIGH COURT

Tribunal dismissed the appeal for non-compliance of the conditional order of stay. - appellant contended that the Tribunal is not justified in passing the impugned order, when, prima facie, the demand itself is not justified, by virtue of the Board's Circular, dated 06.08.2008. - Demand of services tax on loading or unloading activities being provided in relation to GTA service

Held that:- Despite the request being made, seeking modification of the order of stay, the Tribunal did not .....

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aving regard to the availability of CENVAT credit to the extent of ₹ 77,00,000/-. But that has not been done.

The appellant shall deposit a sum of ₹ 10,00,000/- (Rupees ten lakhs only) to the credit of the second respondent within a period of four weeks from the date of receipt of a copy of this judgment - on such deposit being made, the Tribunal shall take the appeal - Decided in favor of assessee - Civil Miscellaneous Appeal Nos.2805 and 2806 of 2015 & 58, 59 of 2016 and .....

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os.41045 and 41046 of 2014, dated 26.06.2014, respectively. Brief facts:- 2. The appellant is a proprietry firm, engaged in providing transport facility (air, train and road) to various customers. The main activity of the firm is transporting of goods from one place to another. In all cases of transport facility provided to the customers, there is no clause on price / charges for loading and unloading, but the clause was only with reference to freight charges on weight basis. In respect of the t .....

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009-2010. 2.2. The contention of the learned counsel for the Revenue was that the appellant did not include Booking and Forwarding Charges, Loading and Unloading charges, clearing charges, freight charges and vehicle charges in the taxable value and thus, the returns filed are incorrect. 2.3. The appellant filed a detailed reply, dated 23.07.2010, submitting that: (a) the appellant had done only transportation of goods for which they are not liable to pay service tax; and (b) even assuming that .....

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lty payable ₹ 1,89,72,702/- (along with interest) For the period from 2009-10: Service Tax demanded - ₹ 97,417/- Penalty at ₹ 200/- per day or 2% per month plus interest. Further penalty Rs.5,000/- 2.5. As against the Adjudication Order, dated 21.03.2012, the appellant filed an appeal before the CESTAT, along with an application for waiver of pre-deposit of the amount demanded. The first respondent / CESTAT / Tribunal, while considering the Application for Stay, by order in Mis .....

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ferred to in the order of stay. A request was also made by the assessee to adjust the CENVAT credit of ₹ 77,00,000/-, as against the order of pre-deposit. The Revenue commented that the conduct of the assessee in taking belated steps for verification of the deposit is not praise-worthy, but, however, granted eight weeks further time for compliance of the earlier order alone. The assessee was directed to produce a Verification Report from the Department and to deposit the balance amount. 2. .....

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n-compliance of the conditional order of stay. The learned counsel for the assessee had sent a Fax message, dated 01.06.2015, seeking for an adjournment of the case. But, the Tribunal felt that sufficient time has already been granted and therefore, passed the Final Order Nos.40606-40607 of 2015, dated 01.06.2015, dismissing the appeal for non-compliance of the conditional order of the stay. Challenging the same, C.M.A.Nos.2805 and 2806 of 2015 have been filed. 2.8. During the hearing of the app .....

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learned counsel for the appellant, in all these appeals, is that the Tribunal is not justified in directing the appellant to pre-deposit a sum of ₹ 1,25,00,000/-, when: (a) the demand for the year 2004-05 is barred by limitation; (b) the appellant had already paid a sum of ₹ 29,03,409/-; (c) the CENVAT credit of ₹ 77,00,000/- was available with the Department. It is further contended by the appellant that the Tribunal is not justified in passing the impugned order, when, prima .....

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t taking into account all the parameters, mentioned above, is arbitrary and unsustainable. 6. At the outset, it has to be pointed out that the liability to pay service tax and the issue of limitation with regard to the demand made are all matters to be agitated only before the first respondent / CESTAT. 7. The only issue to be decided in these appeals is, whether the first respondent is justified in dismissing the appeals for non-compliance of the conditional order of stay. 8. The learned counse .....

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