CESTAT, KOLKATA BENCH
Eastern Coalfields Ltd.
Commissioner of Central Excise & Service Tax, Bolpur
FINAL ORDER NO. A/636/KOL./2012
STAY ORDER NO. S/1059/KOL./2012
STAY PETITION NO. SP/722 OF 2010
APPEAL NO. ST/326 OF 2010
SEPTEMBER 3, 2012
S.K. Gaule, Technical Member
The applicant filed this application for waiver of pre-deposit of Service Tax of Rs. 10,88,08,210/- and equal amount of penalty under Section 78 and penalty of Rs. 1,000/- under Section 77 of the Finance Act, 1994.
2. Ld. Sr. Advocate Dr. Samir Chakraborty submitted that appellant had availed benefit of Notification No. 32/2004-S.T., dated 3-12-2004 and Notification No. 1/2006-S.T., dated 1-3-2006 as applicable during the material period. Show cause notices were issued to them denying the benefit of the said exemption Notification as the appellant had failed to fulfil the conditions of the said Notification inasmuch as they could not produce the relevant consignment note indicating necessary declaration from transport agency that neither credit on input or on capital goods and benefit of Notification No. 12/2003-S.T., dated 20-6-2003 had been availed for providing such services by the said transport agencies. He further submitted that they have produced certificates from the respective transport agencies wherein it has been certified that the transporters had not availed the credit of duty paid on inputs or capital goods nor any benefit under Notification No. 12/2003-S.T., dated 20-6-2003. Ld. Advocate has submitted that it is not necessary to declare or certify on each and every consignment note issued by the transport agency that they had not availed Cenvat credit on capital goods or inputs or availed benefit of Notification No. 12/2003-S.T. It would suffice if the respective transport agencies furnish a declaration in any form stating that they have not availed Cenvat credit on capital goods or inputs and or availed benefit of Notification No. 12/2003-S.T. The ld. Advocate referred to the Circular of C.B.E.C. bearing F. No. 137/154/2008 CX.4, dated 21-8-2008 wherein clarifying the earlier Circular No. BI/6/2005-TRU, dated 27-7-2005, it is mentioned that the benefit of availment of abatement under Notification No. 32/2004-S.T. or 1/2006-S.T. be extended to past cases also, if the taxpayers produce a general declaration from the GTA to the effect that neither credit on input or capital goods used for provision of service has been taken or benefit of Notification No. 12/2003-S.T. has been taken by them. The contention is that on similar facts and circumstances of the case, this Tribunal vide its Order Nos. A-510-511/KOL/2012, dated 20-6-2012 has allowed the appeal in the case of Indian Oil Corpn. Ltd. v. CCE.
3. Ld. A.R. did not dispute the statement of ld. Sr. Advocate.
4. After hearing both sides we find that appeal itself can be disposed of at this stage. Therefore, after waiving the requirement of pre-deposit, we take up the appeal for disposal.
5. This Tribunal vide its order dated 20-6-2012 (supra) has held as under :
“………..We find that the present appeal revolves around a limited issue of eligibility of abatement of 75% from the gross taxable value of service rendered by a goods transport agency (GTA) as allowed under Notification No. 32/2004-S.T., dated 3-12-2004 or Notification No. 1/2006-S.T., dated 1-3-2006. The point of dispute between the appellant and the Revenue was that the declaration required to be filed by the respective goods transport agency as prescribed by the Board in its earlier Circular No. Bl/6/2005-TRU, dated 27-7-2005 has not been complied with. In the said Circular, it was clarified that a declaration by a goods transport agency in the consignment note issued to the effect that neither credit on inputs or capital goods used for provision of service had been taken nor the benefit of Notification No. 12/2003-S.T. had been taken by them would suffice for the purpose of availment of abatement by the person liable to pay the service tax. It is the allegation of the Revenue that the appellant had failed to produce declaration from the respective transport agency in each consignment note to the effect that they had neither availed credit on inputs or capital goods nor benefit of Notification No. 12/2003. On the other hand, the appellant had claimed that the declaration were furnished by the respective goods transport agencies in their letterhead declaring that they had not availed the credit of duty paid on inputs or capital goods nor benefit of Notification No. 12/2003 had been availed. Besides, in the statement of Bills paid towards transport charges to the respective transport agencies, the said declaration was also made. We find that the ld. Commissioner has denied the benefit of said Notification on the ground that the procedure for availing the benefit of said Notification laid down by the C.B.E.&C. in its Circular dated 27-7-2005 and section 37B order No. 5/01/07/S.T., dated 12-3-2007 had not been complied with. We find that taking note of the difficulties experienced by the department as well as the assessees/the Board has issued further clarification on 21-8-2008. It is clarified as follows :
The matter has been examined. Considering the facts and circumstances of the case in partial modification of the instructions contained in Circular No. B1/6/2005-TRU, dated 27-7-2005 it is clarified that the benefit of availment of abatement may also be extended in past cases if the taxpayers produce a general declaration from the GTA to the effect that neither credit on input or capital goods used for the provision of service has been taken nor the benefit of notification No. 12/2003-S.T. has been taken by them.”
Further we find that the issue of abatement from the taxable value under Notification No. 32/2004-S.T. or 1/2006-S.T. is no more res Integra. This Tribunal in the case of Paliwal Home Furnishings v. CST  31 STT 133 (New Delhi – Cestat.) had observed that the Notification Nos. 32/2004-S.T. and 1/2006-S.T. do not prescribe any format in which the certificate to the effect of non-availment of Cenvat Credit or inputs or capital goods and benefit of Notification No. 12/2003, to be furnished. Hence, the certificates given by the GTA on their letter-heads has been held to be sufficient and the department cannot insist that such certificate should be or each consignment note. Further, in Micromatic Grinding Technologies Ltd. v. CCE [Stay order No. ST/724/2011, dated 3-10-2011] case, the said view was echoed and this Tribunal at para 7 observed as follows :
“After appreciating the submissions made by both sides, we find that the notification itself nowhere lays down as to how the said declaration are required to be made. It is only by one Board’s Circular and clarifications that the Revenue is insisting on making declaration on each and every consignment. Apart from the fact that this is a technical ground, we also note that the GTA providers having made an annual declaration in respect of the consignment, the fact of the same would be as if such declarations have been made in respect of each and every consignment. As such, Revenue’s objection that an annual declaration would not serve the purpose, cannot be appreciated.”
We are in agreement with the aforesaid judgments. In absence of any particular format prescribed under the respective notifications, the department insisting for declaration on each consignment note for allowing the abatement under the said Notifications is un-sustainable in law. In these circumstances the declarations filed by the Goods Transport Agencies (GTA) in their letter-heads or in the respective payment bills certifying that they have not availed Cenvat credit on puts or capital goods nor availed the benefit of exemption Notification 12/2003 S.T., dated 20-6-2003 should have been accepted by the department in extending the benefit of Notification Nos. 32/2003- S.T. and 1/2006-S.T. In view of the above findings, we do not see any merit in the impugned orders passed by the ld. Commissioner. Consequently the order is set aside and the Appeals are allowed.
6. We find that the facts and circumstances of the present case are similar to the facts and circumstances of Indian Oil Corpn. Ltd. (supra). In these circumstances we find that the impugned order passed by the ld. Commissioner is not sustainable and is accordingly set aside and the appeal is allowed. S.P. disposed of.