M/S.Sr.Divisional Commercial ... vs Commissioner Of Central Excise & ...

Miscellaneous Application No.MA-71257/13 Stay Petition No.SP-71256/13 & Appeal No.S.T. 71211/13 (Arising out of Order-in-Appeal No.58/Pat/S.Tax/Appeal/2013 dated 19.02.2013 passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)

1. Whether Press Reporters may be allowed to see 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 CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Sr.Divisional Commercial Manager, East Central Railway Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise & Service Tax, Patna Respondent (s)

Appearance:

Shri Bidyut Chakraborty, Adv. for the Appellant (s)

Shri N.G. Mondal, A.C.(A.R.) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing:- 11.05.2015 Date of Pronouncement :- 11.05.2015

ORDER NO.FO/A/75258/15

Per Dr. D.M. Misra.

1. This Miscellaneous Application is filed seeking condonation of delay of 20 days.

2. At the outset Shi Bidyut Chakraborty, Advocate for the Applicant submits that since the applicant is a govt. department obtaining legal opinion from senior law officer to contest the matter before this forum took considerable time and thus there was an unintentional bona fide delay of 20 days. He prays that delay may be condoned.

3. The ld.A.R. for the Revenue has no objection.

4. In view of the reasons explained, the delay is condoned. MA(COD) allowed.

5. The ld.advocate further made a plea that the issue is no more res integra in view of section 99 of the finance Act, 2013. He prays that their Stay Application and Appeal be heard and disposed of.

6. The ld.A.R. for the Revenue has no objection.

7. Consequently the Stay Application and Appeal are taken up for disposal.

8. Briefly stated the facts of the case are that the appellant M/s.Indian Railways was issued a show cause cum demand notice on 21.5.2010 alleging non-payment of Service Tax on the taxable service namely sale of advertisement space of time service and demand of Rs.31,28,764/- was issued for the period from 1.5.2006 to 30.4.2010. The demand was confirmed by the adjudicating authority. Aggrieved by the same, the appellant filed appeal before the Commissioner(Appeals), who in turn upheld the order of the adjudicating authority. Hence the present appeal.

9. At the outset the ld.advocate for the Appellant submitted that in view of the insertion of the section 99 of the Finance Act, 2013, no service tax would be leviable prior to 01.07.2012 in respect of taxable services provided by Indian Railways during the period prior to 01.07.2012.

10. The ld.A.R. for the Revenue has not placed anything contrary to the said claim.

11. After hearing both the sides for some time we find that the appeal itself could be disposed of at this stage. Accordingly after waiving the requirement of pre-deposit of dues adjudged we take up the appeal itself for disposal.

12. We find that the present issue relates to demand of service tax from Indian Railways for the period 1.5.2006 to 30.4.2010 for providing taxable services under the category of sale of advertisement space or time service. By virtue of Finance Act, 1999, no services tax could be recovered for taxable services provided by Indian Railways prior to 01.7.2012. The said provision reads as:-

99. Special provision for taxable services provided by Indian Railways.

(1) Notwithstanding anything contained in section 66, as it stood prior to the 1st day of July, 2012, or in section 66B, no service tax shall be levied or collected in respect of taxable services provided by the Indian Railways during the period prior to the 1st day of July, 2012.

(2) No refund shall be made of service tax paid in respect of taxable services provided by the Indian Railway during the said period prior to 1st day of October, 2012.

13. In view of the aforesaid provision, the impugned orders are not sustainable. Accordingly the same are set aside and Appeal allowed. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

4 Appeal No. S.T. 71211/13