Hindustan Petroleum Corporation Ltd vs Commissioner (Appeals)

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/208, 209 and 210/10 ST/CO-152/11

(Arising out of Order-in-Appeal No. SB(13)13/STC/2010 dated 05.02.2010 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================

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?

Hindustan Petroleum Corporation Ltd.

Appellant Vs.

Commissioner (Appeals), Central Excise, Mumbai I Respondent

Appearance:

Ms Padmavati Patil, Advocate for appellant Shri B.K. Iyer, Supdt. Commissioner (AR) for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 28.07.2015 Date of Decision: 28.07.2015

ORDER NO

Per: M.V. Ravindran

All these appeals are disposed of by a common order as the issue involved is the same and in respect of very same assessee-appellant.

2. Heard both sides and perused the records.

3. On perusal of the records it transpires that the issue involved in these cases is whether the appellant as a recipient of GTA services is eligible for exemption under Notification No.32/2004-ST dated 03.12.2004 without fulfilling the conditions mentioned therein. Both the lower authorities have come to a conclusion that appellant would not have availed the benefit of abatement of 75% of the freight charges in the absence of any declaration from the transport contractors regarding non-availment of CENVAT Credit and also that the declarations were not in respect of the units where the credit was availed. 3.1 On perusal of the declaration forms which were produced by learned Counsel we find that the said declaration clearly indicates that the transport contractors had not availed CENVAT Credit or benefit of Notification 12/2003-ST and the said declarations also covers the period which is in dispute in these appeals. We also find that the declarations are on the specific depots of the appellant either Silvasa at Navi Mumbai or Haybunder Road. Though Haybunder Road is not specifically mentioned, it can be seen from the certificates that the location is mentioned as Lube Plant I and Lube Plant II. 3.2 We find that the declarations which were produced before us covers the period in question and the impugned orders which denied the benefit of Notification No.32/2004 are incorrect. 3.3 We also find that similar issue was decided by the Tribunal in the case of Commissioner of Service Tax vs. Cadila Pharmaceuticals - 2010 (18) STR 611(T) which was upheld by the Honble High Court of Gujarat as reported in 2012 (27) STR 127 (Guj). 3.4 In view of the foregoing and authoritative judicial pronouncements, we find that the impugned orders are liable to be set aside and we do so.

4. Impugned orders are set aside and the appeals are allowed with consequential relief, if any. Cross Objection filed by Revenue is also disposed of. (Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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