TMI Blog2019 (4) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... Daksh Pareek, for the Petitioner. Shri Anuroop Singhi with Aditya Vijay, for the Respondent. JUDGMENT In both these petitions common question of law and facts are involved hence they are decided by this common judgment. For convenience of the Court, the facts are taken from C.W.P. No. 4752/2018. 2. By way of these petitions, the petitioners have assailed the judgment and order of the Settlement Commission whereby Settlement Commission has rejected the applications preferred by the petitioners on the ground that they have not fulfilled the condition of Section 32E of the Central Excise Act, 1944. 3. The facts of the case are that the petitioner is a Private Ltd. Company engaged in the transportation of goods by road. The petitioner owns more than four hundred vehicles for the purpose of transportation of goods. All the vehicles are registered as Public Carrier and accordingly Road tax, registration charges, etc. stand discharged. The petitioner was providing goods transport agency service (GTA service) under Service tax laws. Liability of payment of Service tax under GTA service was on the service receiver. The receiver, Sh. Cement Ltd. (for short SCL) was dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u intend to rely upon in support of your contentions in terms of para 6(2) of Customs and Central Excise, Settlement Commission Procedure, 2007. 6. Counsel for the petitioner has contended that the Superintendent has travelled beyond the order which was unconditional and the Commission has committed serious error in relying on the letter issued by the subordinate officer. He has relied upon the ground E.6 which reads as under :- E.6 In any case, the fourth proviso to Section 32E(1) of the Central Excise Act, 1944 can have no application in Service Tax matters. The reason for disputes relating to classification of excise tariff not being before the Settlement Commission stands succinctly stated in the decision of the Commission in the case of In re : Oriflame India Pvt. Ltd., 2000 (122) E.L.T. 601 (Sett. Comm.) wherein it was held as follows :- 26. We should now briefly deal with the fourth issue raised by the Bench. The 3rd proviso to Section 32E(1) states that an application for interpretation of the classification of the excisable goods under the Central Excise Tariff Act, 1985 cannot be made. The main provision of Section 32E(1) however, requires that the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which the present settlement applications have been filed. The duty liability accepted by the applicant is extraneous to the SCNs and is not towards a case as defined in Clause (c) of Section 32 of Central Excise Act, 1944. In view of the same, we hold that acceptance of Service Tax liability of ₹ 3 lakhs each in respect of two SCNs for which the present applications have been filed do not make the applicant eligible to approach settlement Commission. Apparently, the duty liability equivalent to the minimum required amount of ₹ 3 lakhs as prescribed under clause (c) of sub-section (1) of Section 32E has been accepted by the applicant in relation to the services not being the subject of the duty demand in the SCN, in an attempt to project himself as being eligible to approach the Settlement Commission. In case, however, some other SCN has been issued to the applicant relating to this duty acceptance on account of services falling u/s 66E, the applicant is free to approach the Settlement Commission in a separate application. 20. We further find that in the two SCNs the Department has alleged that the services being provided by the applicant are classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 7-3-2017 enclosing their report dated 27-2-2017 and after receiving the applicant's rejoinder dated 20-3-2017 and the hearing held on 22-3-2017, it came to the knowledge that the disclosure of Service Tax liability as claimed by the applicant was not with reference to the demand of Service Tax in the show cause notices for which the applicant has filed the present applications. Disclosure of Service Tax Liability made by the applicant is not true since the applicant has claimed in his letter dated 20-3-2017 that additional duty liability of ₹ 3,00,000/- is in respect of SCN dated 15-10-2014. However, as discussed in detail in the preceding paragraphs, this admitted Service Tax liability does not pertain to the service in respect of which the SCN has been issued. Similarly in respect of second application received on 3-1-2017, the additional admitted Service Tax liability of ₹ 3,00,000/- is also not even remotely connected with the dispute. Once the disclosure of Service Tax liability is not true as is apparent in this case then Settlement application already admitted can be rejected at any stage till the issue of the Final Order. 25. Similar views have also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery goods or appliances must be without transferring the right of possession and the effective control. The Sangam did not issue any invoices/bills/chits or any other document for the 'hire charges' collected from HPCL. Revenue went on further to state that the issue involved was a classification dispute as to whether the service rendered was classifiable under supply of Tangible Goods Service of GTA service and therefore this issue could not be brought before the commission for Settlement. 7.8 M/s. HPCL had already registered this activity under GTA service, discharged Service Tax on the freight charges paid to Sangam under reversed charge mechanism. 7.2 In RE : Crest Communication Ltd., 2003 (152) E.L.T. 452 (Sett. Comm.), wherein it has been held as under :- (i) Under the statutory provision applicable to settlement of Customs and Central Excise cases, whether the applicant can disclose more than the amount mentioned in the show cause notice. (ii) Whether the amount indicated by the applicant as admitted liability can be varied by the Settlement Commission, keeping in view the correct legal proposition relating to the facts referred to in the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not disclosed in the application. Later, through inquiry and investigation, these undisclosed facts and evidences can be brought out either in the report of the concerned jurisdictional Commissioner of Customs or the Commissioner (Investigation), as the case may be. To illustrate, say, in a case of undervaluation of imported goods where the importer declares only the FOB value of the goods on the plea that the expenses incurred on account of freight and insurance are not known. In the circumstances, the Assessing Officer, besides enhancing the FOB value, also adds to its freight to the extent of 20% of the FOB value and insurance to the extent of 1.25% of the FOB value as per the Customs Valuation Rules, 1988 and thus determines the CIF values and thereafter by adding to it landing charges to the extent of 1% of the CIF value, determines the assessable value for the purposes of the assessment of duty. Later, this case is brought to the Commission by the importer for settlement. After admission of the application, the Commission finds from the report of the Commissioner that the assessable value would be more than what has been determined by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter was before this Hon ble Commission in the matter of Re : Tricuhengode Lorry Urimaiyalargal Sangam - 2016 (41) S.T.R. (Sett. Comm.) and the issue was decided by this Hon ble Commission on the merits of the issue. The averment made in the Report already stands noted by this Hon ble Commission and the same has been declined in the past by this Hon ble Commission. Consequently, the objection of classification raised in the Report of the Commissioner of Central Excise, Jaipur-I is devoid of merits and in any case, the fourth proviso to Section 32E(1) of the Act can have no application in Service Tax matters. The reason for disputes relating to classification of excise tariff not being before this Hon ble Commission has been succinctly stated in the decision of this Hon ble Commissioner in the case of In re : Oriflame India Pvt. Ltd. - 2000 (122) E.L.T. 601 (Sett. Comm.) wherein it was held as follows :- 26. We should now briefly deal with the fourth issue raised by the Bench. The 3rd proviso to Section 32E(1) states that an application for interpretation of the classification of the excisable goods under the Central Excise Tariff Act, 1985 cannot be made. The main provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities executed pursuant to the contract are determinative of the service that stands rendered. It is settled law that literal construction which makes a provision absurd or leads to anomalous results is to be avoided [reliance is placed on CCE v. Raison India - (10) S.T.R. 505]. Consequently, merely because classification issues of excise tariff are not before the Hon ble Commission cannot ipso facto lead to the conclusion that classification of Service Tax issues are also required to be meted with the same treatment. In any case, post 2012 with the advent of Negative list under Service Tax laws there is no segregation of taxable services. Consequently, Service tax matters cannot be barred on the ground of any classification dispute. For this reason, the objection raised in the Report is devoid of merits. In any case, the real issue in the present matter is actually not one of classification. Shree Cement Ltd. has been discharging Service Tax under goods transport agency service on the transaction entered into by the Applicant after claiming the benefit of exemption Notification No. 25/2012-S.T. To the best of knowledge of the Applicant, the Department has all along being acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. At the end of Shree Cement Limited, Service Tax registration and Service Tax is being collected as goods transport agency service . And on the same transaction itself, Service Tax is also being demanded from the Applicant. This contradiction on the part of the Department itself establishes that the show cause notices have been issued in violation of law. It is also settled law that the same transaction cannot be made liable to tax twice. The Department is seeking to precisely demand Service tax twice on the same transaction entered into between the Applicant and Shree Cement Limited. The Department is required to be put to strict notice on the basis as to why Service Tax is sought to be demanded twice on the same transaction. It is settled law that State has no right to retain a tax collected without authority of law and the same is required to be refunded [refer Commissioner of Sales Tax v. Auriaya Chamber of Commerce, Allahabad - 1986 (25) E.L.T. 867 (S.C.)]. Given this, the Department is required to be put to strict notice on their position in the matter. If the view of the Department is in consonance with that of the show cause notice then the Department is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by this court on 18-4-2012 and the Tribunal will consider decisions and it will be open for him to give findings independently on merits of this case. However, he could not ignore the delivery of decisions by the same Bench. In that view of the matter, the order of the tribunal is quashed and set aside. 7. It will be open for the Tribunal to reconsider the matter afresh after considering two decisions relied upon by the assessee and given reasons independently without influenced by the fact that this court has set aside the order on merits to maintain jurisdictional discipline since two decisions are not considered. 8. In view of the above, we remit back the matter to the Tribunal, we have not expressed any opinion on the merits of the case and the Tribunal will give its own finding after considering both the judgments. 9.1 He also relied upon the decision of Gujarat High Court in M/s. Padmavati Tubes v. The Commissioner of Central Excise and Service Tax - 2017 (3) TMI 411 = 2017 (351) E.L.T. 38 (Guj.) wherein it has been held as under :- 8.0 In view of the above and for the reasons stated above and on the aforesaid ground, the impugned judgment and order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian administrative law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker. 11.2 In Commissioner of Customs (Import) v. Noshire Moddy - 2014 (300) E.L.T. 205 (Bom.), it has been held as under :- 6. Counsel appearing on behalf of the Revenue submits that the car which was imported was not a new car within the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been adumbrated :- (1) R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (It and Wt) and Anr., MANU/SC/0429/ 1989 : (1989)176 ITR 169 (SC) (2) Jyotendrasinhji v. S.I. Tripathi and others, MANU/SC/0313/ 1993 : (1993) 201 ITR 611 (3) Shriyans Pradad Jain v. Income-Tax Officer and others, MANU/ SC/0410/1993 : (1993) 204 ITR 616 (4) Kuldeep Industrial Corporation etc. v. Income-Tax Officer and others, MANU/SC/0899/1997 : (1997) 223 ITR 840 A careful study of both the majority and the minority opinions expressed by the Settlement Commission shows that on the basic principles that are applicable to the proceedings before the Settlement Commission, there is no major disagreement. All the three members, including the Chairman, are agreed that it cannot be said that there was no full and true disclosure of the duty liability merely because the applicant did not admit the duty liability mentioned in the show cause notice which, in the present case, is 245.56 crores. They are also agreed that if the case involves a detailed adjudication into complex facts and issues of duty liability, the proper forum would be the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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