(Per : HONOURABLE MR.JUSTICE SONIA GOKANI)
1. The department has challenged order of the Tribunal dated 07.09.2010 proposing following question of law for our consideration:
"Whether, in the facts and circumstances of the present case, the respondent is eligible for benefit of notification No. 32/2004-ST dated 03.12.2004?"
2. Heard learned counsel, Mr. Shastri for the revenue and examined the orders of adjudicating authorities. The question pertains to eligibility of the respondent's getting benefit of Notification No. 32/2004-ST dated 03.12.2004. The respondent, engaged in the manufacturing of goods, availed services of goods transport agency, where they were paying service tax on the service received from concerned goods transport agencies. They availed the benefit of aforementioned notification which allowed the abatement of 75% payment on duty of transportation charges. As it can be pointed out by learned counsel, the decision of Tribunal in case of M/s. Cadila Pharmaceuticals Ltd. came to be challenged in Tax Appeal No. 2172 of 2012, where the order of the Tribunal has been upheld by this Court by following the earlier decision given in Tax Appeal No. 523 of 2010. It would be relevant to reproduce the material portion of order, which is as follows:
"3. Respondent is engaged in manufacture of P&P medicaments and is also engaged in providing taxable service under the category of 'Technical Inspection & Certification Service' and in the capacity of service receiver, the respondents was liable to pay the service tax on 'Goods Transport Service' . Tribunal considered the Notification No. 32/2004-ST dated 3.12.2004 which provided for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no CENVAT Credit had been availed and benefit of Notification No. 12/2003-ST dated 20.6.2003 also had not been availed.
4. Tribunal also held that the requirements prescribed by the Board's Circular was not mandatory and it was working out modality for implementing provisions of law for denial of substantive rights, use of the same cannot be made. Tribunal has dealt with this issue as follows :
"The respondents are paying the service tax as per the reverse charge mechanism and the relevant notification whereby the service receiver is liable to pay the tax. The question to be decided is that how exactly it should be determined as to whether the conditions are fulfilled. The Board had clarified that the endorsement has to be made on the consignment note. Further, we have to take note of the fact that the notification, as such, does not stipulate any such condition. Notification requiring the receiver of the service to pay the tax also does not stipulate any such condition. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights. It is not the case of the Revenue that the appellants have not received the service or service tax has not been paid. Therefore, we find that the Commissioner's order is just and fair and does not require any interference. Further, as rightly pointed out in the absence of an appeal against the Tribunal's order, remanding the matter for verification of evidence, that order becomes final and Revenue cannot challenge the impugned order, ignoring the remand order."
5. Similar such issue had arisen for our consideration in Tax Appeal No. 523 of 2010. The said Tax Appeal has been dismissed in the following manner :
"Department is in appeal against the judgment of Customs, Excise & Service Tax Appellate Tribunal ('Tribunal' for short) dated 6.8.2009 by which appeal of the department came to be dismissed. The issue pertains to filing of general declaration instead of consignment-wise declaration by assessee declaring that cenvat credit is not available. Against the decision of the competent authority dated 7.1.2009, the Commissioner (Appeals) allowed the appeal of the assessee holding that assessee is eligible to claim the benefit of exemption on the ground that procedure was substantially complied with as provided in Notification dated 3.12.2004.
The Tribunal concurred with the view of the Commissioner (Appeals) and dismissed the revenue's appeal relying on the previous decision of the Tribunal reported in 2008(10)S.T.R.201.
Counsel for the petitioner candidly stated that above decision of the Tribunal was not challenged. In addition to above, we also perused the reasoning of the Commissioner (Appeals) as well as the Tribunal in the impugned orders. Issues are purely questions of fact and no substantial questions of law are arising.
The appeal, therefore, stands dismissed. "
6. Having considered identical questions proposed earlier for consideration, the same were not entertained and therefore in the present Tax Appeal preferred by the Revenue. With no other and further materials having came on record, adjudication and conclusion cannot be different than as was done earlier, this Tax Appeal also requires dismissal and accordingly is disposed of."
3. The issue is identical. No independent findings are necessary. No substantial question of law is arising. Hence, the tax appeal is dismissed.
[AKIL KURESHI, J.] [SONIA GOKANI, J.] JYOTI Top