Managing Director Of U.P. State Bridge ... vs C.C.E., Lucknow

(Arising out of the Order-in-Original No. 17/Comm/LKO/ST/2009 dated 31/08/09 passed by the Commissioner, Central Excise, Lucknow).

For approval and signature:

Honble Mr. Justice G. Raghuram, President

Honble Mr. H.K. Thakur, Technical Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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?

4 Whether Order is to be circulated to the Departmental authorities?

Managing Director of U.P. State Bridge Corporation . Appellant

vs.

C.C.E., Lucknow .. Respondent

Appearance:

Shri Ajay Kumar Srivastava, Authorised Representative - for the appellant

Shri B.B. Sharma, A.R. for the Respondent/Revenue

Coram: Honble Mr. Justice G. Raghuram, President

Honble Mr. H.K. Thakur, Technical Member

Final Order No. 52175/2015 dated 06/07/2015

Per. H.K. Thakur :-

This appeal has been filed by the appellant with respect to OIO No. 17/Comm/LKO/ST/2009 dated 31/08/09. The issue involved is service tax liability upon the appellant on transport of goods by road (GTC services) received by the appellant for the period 01/1/05 to 31/1/08. Appellant has not disputed liability of service tax before the Adjudicating Authority but has claimed the benefit of 75% abatement under Notification No. 1/2006-ST dated 01/3/06 before it was withdrawn by issuing another Notification No. 13/2008-ST dated 01/3/08.

2. Shri Ajay Kumar Srivastava, (Authorised Representative) of the appellant appeared for the personal hearing and sought adjournment in the matter on the grounds that their Counsel is busy in his professional work related to a Supreme Court case. However, the reasons given by the appellant are not found justifiable for adjournment and are rejected.

3. Shri B.B. Sharma, learned AR appearing on behalf of the Revenue argued that benefit of 75% abatement under Notification No. 1/2006-ST dated 01/3/06 is available if a transporter is not taking any Cenvat credit of the input services used for providing GTA services. Learned AR made the Bench go through para 16.3 of OIO dated 31/08/09 to argue that appellant has not produced any documentary evidence or a certificate certifying that no Cenvat credit has been taken by the transporter and only stand taken by the appellant is that transporters providing them services are not registered with the Central Excise Department and have not obtained any service tax registration; that no Cenvat credit would have been taken by such transporters.

4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether appellant is entitled to take 75% abatement as per the provisions contained in Notification No. 1/2006-ST dated 01/3/06. It is observed that under this notification transporters providing services to the appellant should give a declaration that no Cenvat credit of input services is taken. It is the argument of the appellant that subsequent Notification No. 13/08-ST dated 01/3/08 did not have any condition that any service tax credit on input services has been taken by the transporters and that subsequent Notification No. 13/08-ST convey the intention of the Government for earlier Notification No. 1/2006-ST also. The argument made by the appellant is required to be rejected on the grounds that the Notification issued on 01/3/08 cannot be made applicable to the service tax liability for the period 01/1/05 to 31/1/08 when Notification No. 1/2006-ST dated 01/3/06 was operative. When Notification No. 1/2006-ST talks of not taking of Cenvat credit on input services taken by the transporter then it is obligatory on the part of the appellant or transporter to at least give a general declaration to the effect that no service credit of input services is taken by the transporters. In the absence of any such certificate the finding recorded by the Adjudicating Authority in para 16.3 of the OIO dated 31/8/09 cannot be faulted with and is required to be upheld. Accordingly there is no reason to interfere with the orders passed by the Adjudicating Authority.

5. In view of the above observations, appeal filed by the appellant is dismissed.

(Operative part of the order pronounced in the open court.)

andl

(Justice G. Raghuram)

President

(H.K. Thakur)

Technical Member

PK

??

??

??

??

3