M/S. Waghmode Transport vs Commissioner Of Central Excise

(Arising out of Order-in-Appeal No. PII/AV/114/2010 dated 26.07.2015 passed by Commissioner of Central Excise (Appeals-II), Pune)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and 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?

====================================================== M/s. Waghmode Transport., Appellant Vs. Commissioner of Central Excise, Pune Respondent

Appearance: Shri- N.S.Patel, Advocate, for Appellant Shri- S.V. Nair, Supdt (AR), for Respondent

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

Date of Hearing : 13/08/2015 Date of Decision : 13/08/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. PII/AV/114/2010 dated 26.07.2015.

2. Heard both sides and perused the records.

3. The issue involved in this appeal is whether service tax is liable to be paid on the gross amount charged and received by the appellant or otherwise needs to be restricted to the commission received by them for the activities of Clearing and Forwarding Services undertaken by them.

4. Learned Counsel appearing on behalf of appellant draws our attention to the definition as par section 65 (25), of Clearing & Forwarding Agency Services and the taxable service. He would submit that the appellant had received an additional amount from the sugar factory as a reimbursement of expenses incurred towards loading-unloading, transportation etc. He would submit that the reimbursement expenses needs to be reduced from the actual amount of tax on the C&F agent services. He would rely upon the decision of the tribunal in the case of Keralam Enterprises  2008(9) S.T.R. 503 and in the case of Malabar Management Services Pvt. Ltd. 2008 (9) S.T.R. 483(Tri.-Chennai). He would also submit that extended period invoked is also incorrect as the appellant was showing the amount of service tax paid by them.

5. After hearing the learned departmental representative, we find that the appeal filed by the appellant is devoid of merits. We find that appellant himself registered under the category of Clearing and Forwarding Agency Services. We find from the work order issued by the sugar factory, is in respect of the loading-unloading, transportation charges etc. The claim of the appellant that amount which are received by them are reimbursement of the expenses, is not substantiated in any manner by the appellant. In absence of any evidence to support their claim that the amounts are reimbursement of the expenses, we hold that the lower authorities were correct in demanding the service tax liability.

6. As regards the point raised by the appellant as to that extended period cannot be invoked, we find that the appellant have again not produced any evidence, they had blandly indicated in their service tax returns that this amount is received by them as reimbursement of expenses. On enquiry from the bench, counsel for the appellant could not show us from the records that they had informed the authorities as to that the amounts were received towards reimbursement of expenses. In view of this, we hold that this ground of the appellant also fails.

7. We did not find any merits in the appeal filed by the assessee. The appeal is dismissed.

(Dictated in Court)

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

akp 1 3 APPEAL No.ST/620/10-Mum