Naiknaware Chemicals Ltd vs Raigad

[Arising out of Order-in-Appeal No. YDB/86/RGD/2011 dated 31/01/2011passed by the Commissioner of Central Excise (Appeals), Mumbai  II.]

For approval and signature:

Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, 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? : No 2. Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : No 3. Whether Their Lordships wish to see the fair copy of the Order? : Seen 4. Whether Order is to be circulated to the Departmental authorities? : Yes

Naiknaware Chemicals Ltd.

Appellant Vs

Commissioner of Central Excise

Raigad

Respondent

Appearance:

Ms. Manasi Patil, Advocate for the appellant

Shri S.R. Nair, E.O. (A.R.) for the respondent

CORAM:

Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical)

Date of hearing: 10/08/2015 Date of decision: 10/08/2015

ORDER NO: ____________________________

Per: M.V. Ravindran:

This stay petition is filed for waiver of pre-deposit of an amount of ` 28,241/-, interest thereof and penalty under Section 76 of the Finance Act, 1994.

2. After hearing both the sides on the stay petition, we find that the appeal itself can be disposed of at this stage, as it lies in a very narrow compass. Accordingly, after waiving the condition of pre-deposit of the amounts involved, we take up the appeal itself for disposal.

3. Heard both the sides on the appeal and perused the records.

4. The issue involved in this appeal is whether the appellant is eligible for the benefit of abatement of 75% of the amount of freight paid by them to Goods Transport Agency while discharging service tax liability as recipient of the service. It is the case of the Revenue that the appellant is not eligible for such abatement under Notification 32/2004-ST as they had not produced any declaration or endorsement or consignment note which is a pre-requisite for availment of such abatement. We find that, an identical issue came up before this bench in the case of Sandoz P. Ltd. vs. Commissioner of Central Excise, Raigad 2014 (33) STR 424. While disposing of that appeal, the bench recorded as under:

5.?We observe that in this case appellant availed goods transport agency service and paid the Service Tax as per the Service Tax Rules, 1994 as service recipient. Although there is no endorsement on the consignment that the transporter has not availed Cenvat credit but it is implied that when the transporter has not paid any Service Tax, question of availment of input/input Service Tax credit does not arise. In view of these observations, we do not find any merit in the impugned order. Therefore, impugned order is set aside and the appeal is allowed with consequential relief, if any.

5. In our view, the above ratio will apply in this case also. Accordingly, respectfully following the above judgment in the case of Sandoz P. Ltd. (supra), we set aside the impugned order and allow the appeal.

(Dictated in Court) (C J Mathew) Member (Technical) (M V Ravindran) Member (Judicial) */as

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ST/319/2011