Amrut Sanjivani Sugarcane Trans. Co. ... vs Cce, Aurangabad

[Arising out of Order-in-Original No. 36/Service Tax/Commissioner/2010 dated 11.08.2010 and Order-in-Appeal No. AGS(254)220/2010 dated 23.09.2010 passed by the Commissioner of Central Excise & Customs, Aurangabad].

For approval and signature:

Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

Amrut Sanjivani Sugarcane Trans. Co. (P) Ltd. Suvarna Sanjivani Sugarcane Trans. Co. (P) Ltd. Appellants

Vs.

CCE, Aurangabad Respondents

Appearance: Shri T. C. Nair, Advocate for Appellants

Shri K. S. Mishra, Addl. Comm. (AR) for Respondents

CORAM: HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) HONBLE SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing: 23.06.2015

Date of Decision: 23.06.2015

ORDER NO.

Per: Shri M. V. Ravindran

1. These two appeals are disposed of by a common order as they raise same question of law and on the same set of facts.

2. Appeal No. ST/714/10 is directed against Order-in-Appeal No. AGS(254)220/2010 dated 23.09.2010 and Appeal No. ST/587/10 is directed against Order-in-Original No. 36/Service Tax/Commissioner/2010 dated 11.08.2010.

3. Heard both sides and perused the records.

4. Both the appellants are engaged in rendering the services of sugarcane harvesting and transportation thereof from the farmers fields to sugar factory. The appellants were paid an amount as services charges on which the appellant has discharged service tax liability in addition to the above, it is the case of revenue that appellant has received an amount as commission for rendering the services, while it is the case of the appellant that the commission which is received nothing but amount to be paid to various small transporter, labour contractors. It is also the case of the appellant that the issue is now covered by the Tribunal judgment in the case of Dnyaneshwar Trust V/s CCE, Mumbai  2013(31) STR 328 as appellants have claimed the benefit of Notification No. 13/2003-S.T.

5. On perusal of the said judgment, we find it so. We reproduce the entire judgment which is as under.

(1). Heard both sides.

(2). The appellant has filed this application for waiver of pre-deposit of duty of Rs.1,43,60,622/-, interest and penalties. The demand is confirmed on the ground that the appellant provided Business Auxiliary Service and received some amount from the sugar manufacturers on which appropriate service tax has not been paid. The contention is that the appellant is undertaking the activity of harvesting and transportation of sugarcane from the farmers fields to the sugar factory and to coordinating such activities the appellants are paying service tax in respect of harvesting and transportation of sugarcane. The appellant is receiving certain amounts for rendering the above service, which was shown in the Books of Accounts as commission. The contention in the impugned order, (para 6.3) is that the appellant has acted as commission agent and the commission agent is also covered under the scope of Business Auxiliary Service. The appellant claims the benefit of Notification No.13/2003-S.T., dated 20.06.2003, which provides exemption in respect of Business Auxiliary Service provided by commission agent in respect of agricultural products from service tax. The contention is that the appellant is dealing with sugarcane which is an agricultural product hence, the appellant is entitled for the benefit of Notification. Hence, the demand is not sustainable.

(3). The Ld. AR submitted that the appellant is engaged in providing manpower & transport of goods services for sugarcane harvesting and transportation and undertaking procurement of inputs for the sugar manufacturers therefore, the appellant is providing the Business Auxiliary Service hence, this activity is not exempted. Hence, the appellant is liable to pay service tax in respect of the amounts received in this regard.

(4). We find that the adjudicating authority in the impugned order held that the appellant has undertaking the activity of harvesting sugarcane and its transportation to sugar factory from the fields of farmers and this activity is in relation to sale of sugarcane by farmers and purchase of sugarcane by the sugar factory and service provided of a commission agent. In view of this finding, we find that the appellant is entitled for the benefit of Notification No. 13/2003-S.T., which provides exemption from payment of service tax in respect of service provided under Business Auxiliary Service in relation to the sale of agricultural products.

(5). In view of these observations, the appeal is allowed with consequential relief, if any and the impugned order is set aside.

It can be seen from the above reproduced judgment of the Tribunal that the issue is now covered in favour of appellants in an identical set of facts.

6. In the facts and circumstances of this case and following the authoritative judicial pronouncement, we find that both impugned orders are unsustainable and liable to be set aside and we do so. Impugned orders are set aside and appeals are allowed.

(Dictated in Court)

(P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial)

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