The Shahabad Cooperative Sugar Mills ... vs Cce, Panchkula
- CitationAppeal No. ST/567//2009-CU (DB)
Ratio decidendi
The rule this decision rests on
The order rests on a procedural rule: where there is an unresolved factual dispute as to the documents issued by the transporter and whether GRs were issued, which must be examined, the impugned adjudication order is to be set aside and the matter remanded to the adjudicating authority to decide afresh, having regard to the facts in detail and the case law relied upon by the appellant, after affording the appellant a proper opportunity of hearing.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA No.22/ST/PKL/09 dt.13.4.09 passed by CCE(Appeals), Delhi-I)
The Shahabad Cooperative Sugar Mills Ltd. Appellant
Vs.
CCE, Panchkula Respondent
Appearance:
Present for Appellant: Shri Vikrant Karckria, Advocate
Present for Respondent: Shri D.V.Nagvenkar, Authorised Representative
Honble Mr.P.K.Das, Member (Judicial)
Honble Mr.P.S.Pruthi, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it would be released under Rule 27 of the 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 Department Authorities?
Yes
Coram: Honble Mr. P.K. Das, Member (Judicial)
Honble Mr.P.S. Pruthi, Member (Technical)
Date of Hearing/decision: 20.01.2015
FINAL ORDER NO.51072/2015
PER: P.K.DAS
The appellants are engaged in the manufacture of Sugar. During the course of audit by A.G.(Audit) party, it was noticed that the appellant paid amount for transporting of Cane from collection centres to their Mill for manufacturing of the Sugar. The adjudicating authority confirmed the demand of service tax under Goods Transport Agency Service. The Commissioner (Appeals) upheld the adjudication order.
2. The main contention of the Appellant is that the mere payment of Truckers on behalf of the cane farmers would not come within the purview of Notification No.35/2004-CE, dated 03.12.2004. Learned Advocate fairly submits that they have taken a definite stand that the truckers had not issued GRs, which is required to be verified by the lower authorities. He relied upon the decisions of the Tribunal as under:
(a) M/s.Kishan Sahakari Chini Mills Ltd. vs. CCE, Lucknow (Final Order No.51810-51814/2014-ST(DB) dated 29.4.2014
(b) Nandganj Sihori Sugar Co.Ltd. vs.CCE. Lucknow-2014 (34) STR 850 (Tri.-Del.)
(c) Birla Ready Mix vs. CCE, Noida-2013 (30) STR 99 (Tri.-Del.)
(d) CCE, Guntur vs.Kanaka Durga Agro Oil Products Pvt.Ltd.-2009 (15) STR 399 (Tri.-Bang.)
3. After considering the submissions of both sides and on perusal of the records, we find that there is a factual dispute on the documents used by the transporter, issuance of GRs which is required to be examined. In view of that, we set aside the impugned order and the matter is remanded back to the adjudicating authority to decide afresh after considering the facts of the case in detail with the case law as relied upon by the appellant. Needless to say that the adjudicating authority shall give proper opportunity of hearing to the appellant before decision.
4. The appeal filed by the Appellant is allowed by way of remand.
(Pronounced in the court)
(P.S.PRUTHI) (P.K.DAS)
MEMBER (TECHNICAL) MEMBER(JUDICIAL)
mk
2
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