M/S. Abhishek Enterprises Vs. Commissioner of Central Excise and Customs, Aurangabad - Court Judgment

SooperKanoon Citationsooperkanoon.com/943390
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnApr-12-2010
Case Number Application No. ST/S/1780/09 - Mum In Appeal No. ST/258/09 -Mum (Arising out of Order-in-Ap
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL)
AppellantM/S. Abhishek Enterprises
RespondentCommissioner of Central Excise and Customs, Aurangabad
Advocates:Shri Prashant Patankar, Consultant for Appellants. Shri Jamman Singh, JDR for Respondents.
Excerpt:
per : ashok jindal the appellant has filed the appeal along with an application for waiver of pre-deposit of the balance amount of the service tax of rs.1,01,136/- and penalty of rs.1,44,898/-. after hearing the stay application for some time, i felt the appeal itself can be disposed of and therefore after waiving the requirement of pre-deposit of amount involved, i took up the appeal for final disposal. 2. heard both sides. 3. the learned advocate for the appellant submitted that there is no dispute of the service tax liability, the only dispute is of quantification of liability. as per the notification no. 34/2004-st dated 03.12.2004 read with notification no. 23/2008-st dated 10.5.2008, there will be no service tax where the consignment transported in a goods carriage does not exceed rs.1500/- or the gross amount charged on an individual consignment transported in a goods carriage does not exceed rs.750/-. 4. the learned advocate appearing for the appellant submits that in this case no verification of freight document and freight account was carried out and if the same is carried out, there will be no service tax liability except admitted by the appellant, which they have paid before the adjudication i.e. rs.38,762/-. in that case, he prayed that the matter may be remanded back to the original adjudicating authority to verify the same from the records. 5. the learned dr agrees with the same. 6. after going through the provisions of law, i am in agreement with the contention of the learned advocate that the verification of the freight documents is necessary to quantify the service tax liability and if it is found that the appellant is entitled to the benefit of the notification cited above, the appellant be given the benefit of the same. with these observations it would be appropriate to remand back the matter to the original adjudicating authority to redetermine the service tax liability in the light of the notification no. 23/2008-st dated 10.5.2008 and notification no. 34/2004-s.t dated 3.12.2004. accordingly, the matter is remanded back to the original adjudicating authority for fresh adjudication after following the principle of natural justice. stay petition is also disposed of in above terms.
Judgment:

Per : Ashok Jindal

The appellant has filed the appeal along with an application for waiver of pre-deposit of the balance amount of the service tax of Rs.1,01,136/- and penalty of Rs.1,44,898/-. After hearing the stay application for some time, I felt the appeal itself can be disposed of and therefore after waiving the requirement of pre-deposit of amount involved, I took up the appeal for final disposal.

2. Heard both sides.

3. The learned Advocate for the appellant submitted that there is no dispute of the service tax liability, the only dispute is of quantification of liability. As per the Notification No. 34/2004-ST dated 03.12.2004 read with Notification No. 23/2008-ST dated 10.5.2008, there will be no service tax where the consignment transported in a goods carriage does not exceed Rs.1500/- or the gross amount charged on an individual consignment transported in a goods carriage does not exceed Rs.750/-.

4. The learned Advocate appearing for the appellant submits that in this case no verification of freight document and freight account was carried out and if the same is carried out, there will be no service tax liability except admitted by the appellant, which they have paid before the adjudication i.e. Rs.38,762/-. In that case, he prayed that the matter may be remanded back to the original adjudicating authority to verify the same from the records.

5. The learned DR agrees with the same.

6. After going through the provisions of law, I am in agreement with the contention of the learned Advocate that the verification of the freight documents is necessary to quantify the service tax liability and if it is found that the appellant is entitled to the benefit of the Notification cited above, the appellant be given the benefit of the same. With these observations it would be appropriate to remand back the matter to the original adjudicating authority to redetermine the service tax liability in the light of the Notification No. 23/2008-ST dated 10.5.2008 and Notification No. 34/2004-S.T dated 3.12.2004. Accordingly, the matter is remanded back to the original adjudicating authority for fresh adjudication after following the principle of natural justice. Stay petition is also disposed of in above terms.