2022-TIOL-928-CESTAT-ALL
Prakash Road Lines Vs CCE, C & ST
ST - The Appellants are engaged in transportation of goods from various siding to Nepal. On going through the records like Income Tax Returns, Income & Expenditure Account, Profit and Loss Account and Balance sheet of the appellant for the years 2007-08 to 2011-12, it appeared to the Department that the appellant had rendered the taxable services under the categories 'Goods Transport Agency Service'; 'Business Auxiliary Service'; 'Manpower Recruitment Service or Supply Service' etc and that the appellant had not discharged the applicable service tax - On completion of the enquiry, a show cause notice dated 31.03.2013 was issued to the appellant proposing to recover service tax of Rs. 1,42,82,025/- alongwith penalty under section 77 and section 78 of Finance Act, 1994. The show cause notice was adjudicated, vide impugned order, confirming the duty and imposing penalties. Held - Commissioner (Appeals) has analyzed the issues correctly and has recorded correct findings - Even though, the issue is decided in the negative list regime, post 1.7.2012, the argument is valid for earlier period also and the demand covers partly the period after 1.7.2012 - The Commissioner has correctly evaluated the services rendered by the appellants - The Department has accepted the order - It cannot be said that the order has been accepted on monitory grounds, when an appeal against the earlier order passed is pending before this Bench. Therefore, we are of the opinion that the order has attained finality. For this reason also the earlier order, confirming the demand cannot be sustained and needs to be set aside: CESTAT + We find that no contract or agreements have been expected to show that the appellant had undertaken any responsibility to transport the goods or it had just provided the trucks as owners of the trucks. We find that these challans, alleged to be consignment notes by the department, have not been issued against the receipt of goods and they have not undertaken safe delivery of the same from the consigner to the consignee. We have gone through the sample challans and find that the said challans do contain details like truck number, driver name and particulars of the goods. The said challans do not mention separately the consignor and the consignee. It is submitted that the Nepali Traders engaged these trucks from the appellant and others for transporting their own goods for transportation from Gorakhpur to different places in Nepal. Thus, in the facts of the case, it appears that the consignor and consignees are same. Appellant referred to the speech of Hon'ble Finance Minister on 08.07.2004 stating that there has been no intention of law makers to levy service tax on services provided by individual truck owner operators. We find that under the circumstances, department's holding that the challans are consignment notes, is incorrect; [Para 10] + Moreover, we find that the whole demand has been made on the basis of an approximate calculation. Such calculation shows, in some cases, that 58 Metric Tonnes of material was transported in a single truck. It is common knowledge that a truck cannot carry more than 18 to 20 Metric Tonnes at a time. As it is the Department that is alleging non-payment of service tax, it is incumbent upon the Department to quantify the duty liability in a legally sustainable manner with evidence. Having failed to adduce evidence to substantiate the allegation, the department cannot hide behind the ratio of a judgment, delivered, in some other context, stating that Revenue is not required to prove with mathematical precision. The Department cannot cover up half baked enquiry and issuance of demand under any judicial pronouncement. Instead of proving the existence of distinct elements, to fasten tax liability, like service provider, classification of service rendered, service recipient and consideration received, the department cannot just rely on figures culled from Income Tax Returns, 26AS Statement, balance sheet, profit and loss account etc. The impugned order has seriously erred in confirming the duty liability simply on the basis of the figures obtained from documents like Income Tax Returns etc. without causing a bare minimum enquiry with all the concerned parties. Moreover, the taxability of the appellant when they receive consideration from the customers residing in Nepal, on reverse charge mechanism is not established; [Para 11]
- Appeal allowed: ALLAHABAD CESTAT
2022-TIOL-927-CESTAT-DEL
Reliance Commercial Dealers Ltd Vs CC
Cus - The issue involved is, whether use of aircraft imported by appellant with benefit of exemption from customs duty under serial 347B of Notification No. 21/2002-Cus, as amended by Notification No. 61/2017-Cus., exemption notification, for providing passenger air transport service to its group company by carrying personnel of group company for remuneration would amount to violation of Condition 104 of said exemption notification and whether it is open to Customs to contend that such use in not in accordance with permit for non-scheduled (passenger) services granted by DGCA when the DGCA has not found such use to be in violation of such permit and had renewed the permit from time to time - It is not in dispute that appellant had submitted an application for permission to import aircraft for operating non-scheduled (passenger) services and a permit had been granted by DGCA to import aircraft for non-scheduled (passenger) services - Appellant imported the aircraft and claimed exemption from customs duty under exemption notification - Said exemption is subject to Condition No. 104 contained in said notification which is to the effect that the aircraft should be imported by an operator who has been granted approval for providing non-scheduled (passenger) services or non-scheduled (charter) services and importer should furnish an undertaking that aircraft shall be used only for providing said services - DGCA has not found the use of aircraft by appellant to be in violation of permit for non-scheduled (passenger) service and in fact has renewed the permit year after year - There is no violation of undertaking and, therefore, Customs cannot demand duty in terms of undertaking - Larger Bench of Tribunal specifically held that the decision of Tribunal in East India Hotels 2020-TIOL-335-CESTAT-DEL which holds that it is the Customs department that has to ensure compliance of the undertaking is not correct - Use of aircraft has, therefore, been in accordance with scope of non-scheduled (passenger) services and there is no violation of undertaking to use the aircraft for non-scheduled (passenger) services - Impugned order can not be sustained - Penalty imposed upon Sudhir Nayak cannot also be sustained: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-926-CESTAT-MAD
Santhi Steels Vs CCE
CX - Appeal filed against impugned order, whereby penalty imposed under Rule 26 of Central Excise Rules, 2002 has been upheld - A SCN was issued to five co-noticees since the Revenue had suspected that one of co-noticees namely, M/s. Hitech Mineral Industries (Covai) Pvt. Ltd. had wrongly availed CENVAT Credit and that appellant had abetted/aided, planned and conspired with other co-noticees in preparation of invalid documents - When a statutory notice was issued, it was incumbent upon appellant to at least offer an explanation to clear the doubts pointed out - The appellant, however, without bothering to do so, has only contended that documents/ evidences relied upon by Revenue were vague, despite the fact that Revenue had also relied on his statement recorded, which is not rebutted - There is no supporting material placed on record by appellant or even by M/s. Hitech Mineral Industries other than a mere statement that credit in question have been availed in accordance with law, to clear the doubts in mind of Revenue - Further, from the grounds of appeal, pleadings and arguments, Tribunal do not see any whisper about any retraction or any disputes as to their statements being not voluntary - The same are not even rebutted as having been obtained per force - Hence, statements are relevant documents - Appeal was filed in year 2013 and appellant had sufficient time to place all such relevant documents on record, but no such attempt is made - Appellant has only relied upon those very same invoices, Daily Sheets, material inward notes of M/s. Hitech Mineral Industries which form the very foundation for issuing SCN - Further, appellant has nowhere answered the various doubts as indicated - No reasons found to interfere with well-founded O-I-O, which has been upheld in impugned order of Commissioner (A): CESTAT
- Appeal dismissed: CHENNAI CESTAT
