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Judgment
K.A. Puj, J.—The Commissioner of Central Excise, Customs & Service Tax, Vapi has filed this tax appeal u/s 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, proposing to formulate the following substantial question of law for determination and consideration of this Court:
Whether the Tribunal is justified in allowing abatement to Assessee though whereas as per para-31 of Circular No. B1/6/2005-TRU, dated 27.7.2005, the procedure prescribed is that a declaration by the service provider, in all such cases, on the consignment note is mandatory?
Heard Ms. Naynaben Gadhavi, learned Standing Counsel for the revenue and perused the orders passed by the authorities below.
A show cause notice was issued to the Respondent Assessee which was adjudicated by the Assistant Commissioner on 31.8.2007 demanding service tax amounting to Rs. 1,87,147/- short paid by the Respondent Assessee during the period from January 2005 to January 2006 and also imposing penalty of Rs. 1,87,147/- as well as directing to recover interest at appropriate rate. This order was challenged before the Commissioner (Appeals). The Commissioner (Appeals) vide his order dated 30.11.2007 allowed the said appeal and set aside the order passed by the Assistant Commissioner. The revenue has taken up the matter before the Tribunal and the Tribunal vide its order dated 26.12.2008 2009 (14) S.T.R. 374 confirmed the order passed by the Commissioner (Appeals).
Mrs. Naynaben Gadhavi, learned standing counsel appearing for the revenue has submitted that as per Section 37B of the Act, the order dated 12.3.2007 was issued wherein it was clarified that any person who is made liable to pay service tax, while discharging service tax liability on such service, is entitled to avail of the benefit of exemption in terms of Notification No. 32/2004-S.T. and No. 1/2006-S.T., subject to fulfillment of the conditions prescribed therein by adopting the procedure prescribed in para-31 of Circular No. B1/6/2005-TRU, dated 27.7.2005. She has further submitted that the procedure prescribed is that a declaration by the service provider, in all such cases, on the consignment note, to the effect that the conditions of the exemption notification has been satisfied, would be sufficient for availing of the benefit under the said notifications. She has further submitted that the Tribunal has wrongly come to the conclusion that a declaration by the goods transport agency in the consignment note issued to the effect that neither credit on inputs or capital goods used for provision of service has been taken nor the benefit of Notification dated 20.6.2003 has been taken by the Respondent Assessee, is required to avail an abatement of 75% in taxable service of goods transport by road.
We have considered the submissions made by the learned standing counsel and also perused the orders passed by the authority''s below.
The Commissioner (Appeals), in his order, at length discussed this issue and found that the exemption is provided by way of notification and the Board can prescribe the procedure for availing the benefit of the said exemption notification. The Commissioner (Appeals) further observed that it is nowhere found in the impugned order, nor even it had been alleged or held by the adjudicating authority that the GTA in this case has availed credit on inputs and capital goods used for providing taxable service or has availed benefit of Notification No. 12/2003-S.T., dated 20.6.2003. He has, therefore, concluded that the impugned order denying the benefit of Notification No. 32/2004-S.T., dated 3.12.2004 is not correct in law and hence, dismissed the appeal.
The Tribunal has, by referring to the judgment of the apex court in the case of Collector of Central Excise, Vadodra Vs. Dhiren Chemical Industries, confirmed the order of the Commissioner (Appeals) and dismissed the appeal filed by the revenue.
We do not find any infirmity in the impugned orders passed by the authorities below since the issue decided is based on the Departmental Circular as well as the decision of the Apex Court. We are, therefore, of the view that no question of law, much less a substantial question of law, can be stated to arise out of the impugned order of the Tribunal. The appeal is, accordingly, dismissed.