Commissioner Of Customs, Central ... vs M/S. The K.C.P. Ltd

Customs Excise and Service Tax Appellate Tribunal4 August 2015

CitationAppeal No. 14/2011 (G)(D)CE dated 08/11/2011 passed by the Commissioner of Central Excise,

Ratio decidendi

The rule this decision rests on

The Tribunal's rejection of the Revenue's appeal rests on the principle that, where a Larger Bench decision of the Tribunal has been upheld by the High Court and no stay of its operation has been granted, that binding decision governs and the same issue must be decided in favour of the assessee, notwithstanding that an appeal against the High Court decision is pending before the Supreme Court.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCHBANGALOREAppeal(s) Involved:E/372/2012-SM

[Arising out of Order-in-Appeal No. 14/2011 (G)(D)CE dated 08/11/2011 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals), Guntur.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Customs, Central Excise and Service Tax GUNTUR P.B.NO. 331, C.R.BUILDING, KANNAVARI THOTA, GUNTUR 520 004. ANDHRA PRADESH Appellant(s)

Versus

M/s. THE K.C.P. LTD MACHERLA, GUNTUR DIST AP Respondent(s)

Appearance:

Mr. K. T. Pakshirajan, Asst. Commissioner (AR) For the Appellant

Mr. K. Krishnamurthy, Consultant For the Respondent

Date of Hearing: 04/08/2015

Date of Decision: 04/08/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21757 / 2015

Per : ARCHANA WADHWA

Being aggrieved with the order passed by Commissioner (A), Revenue has filed the present appeal.

2. After hearing both the sides duly represented by Mr. K. T. Pakshirajan, Asst. Commissioner (AR) for the Revenue and Mr. K. Krishnamurthy, Consultant for the respondent, I find that the dispute in the present appeal relates to the cenvatability of service tax paid on outward transportation of the goods. The appellate authority has granted relief to the respondents by following the Larger Bench decision of the Tribunal in the case of ABB Ltd. vs. CCE & ST, Bangalore: 2009 (15) S.T.R. 23 (Tri.-LB), which stands upheld by the Honble High Court of Karnataka as reported in 2011 (23) S.T.R. 97 (Kar.).

3. The Revenues only ground is that the said order of the Larger Bench, as confirmed by the Honble High Court of Karnataka has not been accepted and an appeal stands filed against before the Honble Supreme Court. However, the learned DR fairly agrees that there is no stay of operation of the said decisions of the Larger Bench and the Karnataka High Court.

4. In view of the above, I find no merits in the Revenues appeal inasmuch as the issue stands decided in favour of the assessee. Accordingly, appeal filed by the Revenue is rejected.

(Order pronounced in open court)

ARCHANA WADHWA JUDICIAL MEMBER

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