M/S. Associated Refractories And ... vs Commissioner Of Customs, Central ...
- CitationAppeal No.CMB-CEX-OOO-APP-024-14, dated 26.02.2014 passed by the Commissioner of Custo
Ratio decidendi
The rule this decision rests on
Where the declaration under the notification discloses the nature of the activity carried out, and the consolidated statement identifying service provider and service recipient is on record and uncontroverted, the appellant cannot be denied the claimed relief in the absence of uncontroverted material by the Revenue establishing that the declaration was untruthful; the burden of proving untruthfulness rests on the Revenue, which must establish it by investigation. Following earlier Tribunal decisions on the same point, and in the interest of judicial discipline, the appeal is allowed and the stay application disposed of accordingly.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.CMB-CEX-OOO-APP-024-14, dated 26.02.2014 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore]
M/s. ASSOCIATED REFRACTORIES AND MINERALS APPELLANT
Versus
COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, COIMBATORE RESPONDENT
Appearance:
For the Appellant Shri J. Shankar Raman, Adv.
For the Respondent Shri L. Paneerselvam, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member Honbe Shri R. Periasami, Technical Member
Date of hearing/decision 06-04-2015
FINAL ORDER NO. 40366 / 2015
Per D.N. Panda:
Learned counsel submits that the consolidated statement proving identity of service provider and service recipient has come to record. That was filed before the original authority and remained uncontroverted. He further submits that the issuance of declaration come under Notification No.32/2004 and 1/2006, dated 01.03.2006. Once the declaration satisfies disclosure of the carried out activity, there shall not be denial of appropriate relief to the appellant. He relies on the following two decisions to support his contention:-
(i) Steel and Metal Tubes (I) Ltd. Vs Commissioner of Central Excise, Meerut reported in 2013 (31) S.T.R.93 (Tri.-Del.).
(ii) Micromatic Grinding Technologies Ltd. Vs Commissioner of Central Excise, Ghaziabad reported in 2012 (25) S.T.R.355 (Tri.-Del.).
2. Appellants contention that the matter is in second round of litigation before the Tribunal leads to the question whether department has discharged the burden of proof of making investigation to establish that the declaration of the appellant was untruthful. Therefore, submission of the learned counsel cannot be discarded.
3. In absence of any uncontroverted material by Revenue to prove that the appellant has made untruthful declaration, there cannot be denial of the relief claimed by the appellant. Following the decision in the above cited cases and also following the judicial discipline, the stay application is disposed and appeal is allowed.
(Dictated and pronounced in open court)
(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER
ksr 07-04-2015
DRAFT Remarks
I II III
Date of dictation 06.04.2015
Draft Order - Date of typing 07.04.2015
Fair Order Typing 08.04.2015
Date of number and date of dispatch 09.04.2015
4 ST/S/41352/2014 and ST/41117/2014
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