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2016 (9) TMI 743 - CESTAT KOLKATA

2016 (9) TMI 743 - CESTAT KOLKATA - TMI - GTA services - reverse charge - It is the case of the appellant that after amendment to Notification No. 43/97-ST dated-05/11/1997 under the Finance Act, 2003 retrospectively the benefit ought to have been given by the first appellate authority. - Held that:- From the above ratio laid down by the Supreme Court, a notification has to be interpreted by the plain and clear meaning throwing out of a notification. None of the case laws relied upon by the appe .....

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his Bench, there is no reason to allow the appeal of the appellant on merits. - So far as the issue of time bar is concerned, it is observed that this issue was never raised before the adjudicating authority or the first appellate authority, therefore, the same cannot be allowed to be raised at the second appellate stage. - Decided against the assessee. - Service Tax Appeal No. ST/75005/13 - Final Order No. FO/A/76019/2016 - Dated:- 9-9-2016 - Shri H. K. Thakur, Hon ble Technical Member .....

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nded by Finance Act, 2003. That first appellate authority has rejected their appeal regarding chargeability of GTA service on reversed charge basis during the period 16/11/1997 to 01/06/1998 by relying upon the case laws of Pataka Industries (P) Ltd. Vs. Commr. of Central Excise, Bolpur-[2009 (14) S.T.R. 531 (Tri.-Kolkata).] It is the case of the appellant that after amendment to Notification No. 43/97-ST dated-05/11/1997 under the Finance Act, 2003 retrospectively the benefit ought to have been .....

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cise Vs. Himalayan Co.Op. Milk Product Union Ltd. 2000 (122) E.L.T. 327 (S.C.) 3. It is also the case of the appellant that demand is time barred as no suppression or willful misstatement has been alleged in the show cause notice. Ld. Advocate made the Bench go through para 8 of Order-in-Appeal dated 8/10/12 to argue that first appellate authority has clearly held that penalties under Section 76, 77 and 78 of the Finance Act, 1994 are not imposable as there is no omission or commission on the pa .....

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issue either before the adjudicating authority or before the first appellate authority. He relies upon Pataka Industries Pvt. Ltd. Vs. CCE, Bolpur [2009 (14) STR 531 ( Tri.-Kolkata). 5. Heard both sides and perused the case records. The issue involved in the present appeal is whether or not appellant is required to discharge duty liability on GTA service during the period 16/11/1997 to 1/6/1998 by virtue of retrospective amendment of Notification No. 43/97-ST dated-5/11/1997 as amended by the 12 .....

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ed A.R. is as follows: Heard both sides. In respect of both the Appeals which involve the same issue, the Appellants claim that they are covered by exemption Notification No. 43/97-ST, dated 5-11-1997 as retrospectively amended through Twelfth Schedule to the Finance Act, 2003 w.e.f. 16-11-1997. It is their case that they fall in the category of factory other than a factory registered as Small Scale Industries with the State Government. However, we find that the lower appellate Authority has dul .....

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(ii) thereof they also go out of the exemption even though they are not covered under (i) or any of the other items from (iii) to (viii). Hence we are of the view that non-trading private companies even though registered as a small scale industries are not entitled to the exemption under Notification No. 43/97. Therefore, we find no reason to interfere with the orders passed by the Authorities below. 2. Hence both the Appeals are dismissed. 6. Appellant has relied upon several case laws on the .....

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