M/S. G.N. Nikam Vs. Commissioner of Central Excise, Nagpur - Court Judgment

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CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnMay-28-2012
Case Number Application No. ST/Stay/191/12 In Appeal No. ST/47/12 (Arising out Order-in-Original No. 19/2
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
AppellantM/S. G.N. Nikam
RespondentCommissioner of Central Excise, Nagpur
Advocates:For the Appellant : Ms. K. Ramya, Advocate. For the Respondent : Shri V.K. Singh, (AR).
Excerpt:
ashok jindal, member (judicial) by this appeal, the appellant are challenging the service tax demand confirmed under the category repairs and maintenance of roads and goods transport agency service for the period 2005-06 to 2009-10. today t he stay application is listed before us, but after hearing both sides, we find that the appeal itself can be disposed of. therefore, after waiving the requirement of pre-deposit, we take up the appeal for final disposal. 2. the ld. counsel for the appellant submits that the service of repairs and maintenance of roads has been exempted from service tax vide notification 24/09 dated 27.7.2009 and the amendment has been brought with retrospective effect through finance bill 2012. therefore, they are not liable to pay service tax on this activity. with regard to gta service, it is submitted that the appellant is a service recipient and they do not fall under the 7 category where the service recipient is to pay service tax under the gta service. therefore, the whole of the demand is not sustainable. 3. considering the submissions made by the ld. counsel, we find that although the finance bill 2012 has not taken the accent from the hon’ble president of india, but bill has been passed by both the houses of parliament and we are of the opinion that the matter is to be re-examined by the adjudicating authority. therefore, prima facie we are of the view that the appellant are not liable to pay service tax under the category of management, maintenance and repairs of roads. 4. with regard to gta it is contended on behalf of the appellant that they does not fall under the 7 categories of the service recipient who has to pay service tax and such issue has not been examined by the adjudicating authority. therefore, matter needs examination by the adjudicating authority where the applicant falls under the category of gta to pay service tax as the service recipient. 5. in view of the observations, we set aside the impugned order and remand back to the adjudicating authority to consider whether the finance bill 2012 has taken the place as finance act, 2012 at the time of re-adjudicating. if it has become an act, no service tax liability shall be charged under the category of ‘management, maintenance and repairs of roads service.’ the adjudicating authority shall examine whether the appellant falls under any of the categories of gta service where the appellant has to pay service tax as service recipient. after considering the issue, the adjudicating authority shall pass an appropriate order in accordance with law after giving a reasonable opportunity to the appellant to present their case. 6. appeal and stay applications are disposed of in the above manner.
Judgment:

Ashok Jindal, Member (Judicial)

By this appeal, the appellant are challenging the service tax demand confirmed under the category Repairs and Maintenance of Roads and Goods Transport Agency Service for the period 2005-06 to 2009-10. Today t he stay application is listed before us, but after hearing both sides, we find that the appeal itself can be disposed of. Therefore, after waiving the requirement of pre-deposit, we take up the appeal for final disposal.

2. The ld. counsel for the appellant submits that the service of Repairs and Maintenance of Roads has been exempted from service tax vide Notification 24/09 dated 27.7.2009 and the amendment has been brought with retrospective effect through Finance Bill 2012. Therefore, they are not liable to pay service tax on this activity. With regard to GTA service, it is submitted that the appellant is a service recipient and they do not fall under the 7 category where the service recipient is to pay service tax under the GTA service. Therefore, the whole of the demand is not sustainable.

3. Considering the submissions made by the ld. counsel, we find that although the Finance Bill 2012 has not taken the accent from the Hon’ble President of India, but bill has been passed by both the Houses of Parliament and we are of the opinion that the matter is to be re-examined by the adjudicating authority. Therefore, prima facie we are of the view that the appellant are not liable to pay service tax under the category of Management, Maintenance and Repairs of Roads.

4. With regard to GTA it is contended on behalf of the appellant that they does not fall under the 7 categories of the service recipient who has to pay service tax and such issue has not been examined by the adjudicating authority. Therefore, matter needs examination by the adjudicating authority where the applicant falls under the category of GTA to pay service tax as the service recipient.

5. In view of the observations, we set aside the impugned order and remand back to the adjudicating authority to consider whether the Finance Bill 2012 has taken the place as Finance Act, 2012 at the time of re-adjudicating. If it has become an Act, no service tax liability shall be charged under the category of ‘Management, Maintenance and Repairs of Roads service.’ The adjudicating authority shall examine whether the appellant falls under any of the categories of GTA service where the appellant has to pay service tax as service recipient. After considering the issue, the adjudicating authority shall pass an appropriate order in accordance with law after giving a reasonable opportunity to the appellant to present their case.

6. Appeal and stay applications are disposed of in the above manner.