TMI Blog2022 (9) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... rating an act leviable to service tax under section 66E(e) of the Finance Act. An acceptable, and judicially distinguishable, alternative has not been brought before us by Revenue. - SERVICE TAX APPEAL NO: 85767 OF 2019 - A/85713/2022 - Dated:- 12-8-2022 - HON BLE MR ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR C J MATHEW, MEMBER (TECHNICAL) Shri Rajeev Agarwal, Advocate for the appellant Shri Nitin M Tagade, Joint Commissioner (AR) for the respondent ORDER PER: C J MATHEW Impugned before us is order-in-original no. 25-36/ST/2018/C/ NGP-II dated 26th December 2018 of Commissioner of CGST Central Tax, Nagpur -II which, under section 73 of Finance Act, 1994, has determined that appellant, M/s West ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril 10, 2017 was issued to the appellant under Section 73(1) of the Finance Act mentioning therein that the appellant had collected an amount towards compensation/penalty from the buyers of coal on the short lifted/unlifted quantity of coal; collected amount towards compensation/penalty from the contractors engaged for breach of terms and conditions; and collected amount in the name of damages from the suppliers of material for breach of the terms and conditions of the contract. According to the Department this amount charged by the appellant during the period from July, 2012 to March, 2016 appeared to be taxable as a declared service under Section 66E(e) of the Finance Act. The relevant portion of the show cause notice is reproduced belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in Annexures A B appended herewith. It therefore, appears that SECL its coal producing areas had collectively evaded payment of Service Tax amounting to Rs. 35,26,59,837/- (incl. Cess) and the same appears liable to be recovered from them under Section 73 of the Finance Act, 1994 along with interest under Section 75 ibid. 4. The show cause notice involved branches of the appellant that were scattered over various Commissionerates. Therefore, by order dated November 7, 2017, the Principal Commissioner of Central Excise, Customs and Central Tax, Raipur [the Principal Commissioner] was directed to act as a common adjudicating authority. During the course of adjudication proceedings, it was noticed that certain other show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Thane-II [2021 (44) GSTL 155 (Tri. - Mumbai)] thus 7. Learned Counsel for appellant has contended that the impugned order lacks acceptability owing to being cryptic and for inadequate acknowledgement of several issues pleaded in the adjudication proceedings. Considering the submissions, and elaborately too, made before us, we think that no purpose will be served by directing the original authority to decide the matter for the third time. Before considering the merits of the rival submissions, it would be worthwhile to pause, and deliberate upon, the contention of Learned Authorized Representative that admission of an appeal deprives the decision impugned therein of status as binding precedent. Doubtlessly, the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oast Paper Mills Ltd. arose from a commercial engagement of the respondents therein with Indian Railways, as carrier of freight, that, having been placed before the Railway Rates Tribunal following revision of rates on 1st February, 1964, was held to be unreasonable leading to special leave petition by the Indian Railways which was ultimately dismissed by the Hon ble Supreme Court on 14th October, 1970. A consequential application by M/s. West Coast Paper Mills Ltd. before the Hon ble High Court, seeking issue of writ for refund of excess charged, was dismissed on 29th October, 1973 with liberty accorded for filing of suit for recovery. The contention of Indian Railways, that these suits were barred by limitation, not having been accepted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition that declared service conceptually obviates existence of activity and that essence of service is not required to be evaluated for this category targeted for tax despite the inalienability of activity - both in section 65B(22) and section 65B(44) of Finance Act, 1994 from service. We can only conjecture that the trajectorial intent of this argument is that intangibility can be made impossibly more intangible by deeming fiction of declared service in section 65E of Finance Act, 1994. In the light of the decision of the Tribunal in re South Eastern Coalfields Ltd, we fail to see how this submission comes to the aid of Revenue. 6. Strangely, too, Learned Authorized Representative has taken it upon himself not only to aver that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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