Shramik Sarva Seva Trust vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/632&640/10-Mum

(Arising out of Order-in-Original No.31/ST/COMMR./2010 & 32/ST/COMMR/2010 both dated 05/08/2010 passed by Commissioner of Central Excise & Service Tax, Aurangabad)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, 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? ========================================

1. Shramik Sarva Seva Trust

2. Mula Parisar Sarva Seva Sangh Appellant Vs. Commissioner of Central Excise, Respondent Aurangabad

Appearance:

Shri, A.B. Awte, Consultant for appellants Shri. R.K. Das, Dy. Comm. (AR) for respondents

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of Hearing : 01/07/2015 Date of Decision : 01/07/2015

ORDER NO

Per: M.V. Ravindran

These two appeals are disposed of by a common order as the issue involved is the same.

2. Hared both sides and perused the records.

3. It transpires from the record that both appellants are providing services of sugarcane harvesting and transporting sugarcane from the farmers fields to the factories, for which they are registered with the department under the category of man power recruitment and supply agency services and discharged appropriate service tax liability.

4. It is the case of Revenue that the appellants hear-in receive some amount as commission from the Sugar factory; which is liable to be taxed under business auxiliary services, the appellants have not discharged the service tax liability. Both the lower authorities have held against the appellant.

5. Learned consultant would submit that the issue has been decided by the tribunal in the case of DNYANESHWAR TRUST V CCE Mum- 2013 (31) STR 328 (Tri-mum). He would submit that the appeals be allowed.

6. Learned departmental representative on the other hand would submit that the commission received by the appellants is in respect of sugar manufactured in sugar factories. He would submit that this activity of the appellant is in respect of the sale of sugar and hence cannot be considered as activity in relation to agricultural activities.

7. We have considered the submission mach by both sides and perused the records.

8. The issue involved in this case is regarding the service tax liability on the appellants for an amount received as commission for supervising the harvesting and transportation of sugarcane from farmers field to the sugar factory.

9. We find that this issue is now squarely settled by this tribunal in the case of DNYANESHWAR TRUST (supra). We reproduce the entire judgment.

2. The appellant has filed this application for waiver of pre-deposit of duty of Rs. 1,43,60,622/-, interest and penalties. The demand is confirmed on the ground that the appellant provided Business Auxiliary Service and received some amount from the sugar manufacturers on which appropriate service tax has not been paid. The contention sugar manufacturers on which appropriate service tax has not been paid. The contention is that the appellant is undertaking the activity of harvesting and transportation of sugarcane. The appellant is receiving certain amounts for rendering the above service, which was sown in the Books of Accounts as commission. The contention in the impugned order, (Para 6.3) is that the appellant has acted as commission agent and the commission agent is also covered under the scope of Business Auxiliary Service. The appellant claims the benefit of Notification No. 13/2003-S.T., dated 20-6-2003, which provides exemption in respect of Business Auxiliary Service. Provided by commission agent in respect of agricultural products from service tax. The contention is that the appellant is dealing with sugarcane which is an agricultural product hence, the appellant is entitled for the benefit of Notification. Hence, the demand is not sustainable.

3. The 1d. AR submitted that the appellant is engaged in providing manpower & transport of goods services for sugarcane harvesting and transportation and undertaking procurement of inputs for the sugar manufacturers therefore, the appellant is providing the Business Auxiliary Service hence, this activity is not exempted. Hence, the appellant is liable to pay service tax in respect of the amounts received in this regard.

4. We find that the adjudicating authority in the impugned order held that the appellant has undertaken the activity of harvesting sugarcane and its transportation to sugar factory from the fields of farmers and this activity is in relation to sale of sugarcane by farmers and purchase of sugarcane by the factory and service provided of a commission agent. In view of this finding, we find that the appellant is entitled for the benefit of Notification No. 13/2002-S.T., which provides exemption from payment of service tax in respect of service provided under Business Auxiliary Service in relation to the sale of agricultural products.

5. In view of these observations, the appeal is allowed with consequential relief, if any and the impugned order is set aside.

10. It can be seen from the above reproduced judgment of this tribunal that the issue is now squarely covered in favour of the Assessee appellants. Accordingly, we set aside the impugned order and allow the appeals with consequential relief, if any.

(Dictated in Court)

(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)

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