At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA
By, (PRESIDENT) AND THE HONORABLE JUSTICE: V. PADMANABHAN
For Petitioner: Kartik Kurmi, S.B. Sharma and R. Sharma, Advocates And For Respondents: A. Roy, Supdt. (AR)
1. The present appeal is filed against Order-in-Appeal Nos. 49-50/RAN/2011, dated-11-8-2011. Brief facts of the case are that during the period of consideration, the appellant was engaged in the manufacture of Sponge Iron and Ingots falling under Chapter 72 of the Central Excise Tariff Act, 1975. Dur
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ing the period, the appellant had transported "Debries" by deploying their own 'trippers and trucks' where "Debries" were loaded. During the period under the dispute, the appellant received Rs. 1,44,49,483/- on account of transportation of debries. Department has demanded the Service Tax under the category of "Goods Transport Agency Services" along with the interest. Being aggrieved, the appellant has filed the present appeal.
2. With this background, we heard Shri Kartik Kurmy, Counsel for the appellant and Shri A. Roy, Counsel for the department. After hearing both the sides and on perusal of the case record, it appears that the main contention of the appellant is that 'debries' is not a goods and it has no value but fact remains that the appellant has received the money in lieu of dumping the debries. To support his argument, the ld. Counsel has not shown any case law or authority that debries is value less item.
3. Further, the Counsel has relied on the ratio laid down in the case of Escorts Ltd. v. Commissioner of Central Excise, Faridabad [2015 (319) E.L.T. 405 (S.C.) where the definition of goods was mentioned. The ld. Counsel submits that the 'debries' is not valuable goods.
4. The ld. Counsel also relied on the ratio of the judgment - Nandganj Sihori Sugr Co. Ltd. v. Commissioner of Central Excise, Lucknow [2014 (34) S.T.R. 850 (Tri.-Del.)] where GTA service has been defined. Ld. Counsel submits that no consignment note was issued.
5. By considering the totality of the facts and on perusal of the record, it appears that 'debries' is not value less item as appellant has got substantial amount by dumping the debries. Had there not been any debries, there was no question of transportation.
6. It is evident that when the appellant has earned a substantial consideration by dumping debries through trippers and trucks i.e. own transportation, then the tax is leviable, may be as unregistered dealer.
7. In view of above and by considering the peculiar facts and circumstances of the case, the Service Tax is hereby sustained.
8. However, regarding the penalty. It appears that the appellant was under bona fide belief that Service Tax is not leviable. But the Service Tax is applicable as stated above.
9. It may be mentioned that this is the first instance where the appellant submits that the 'debries' has no value. So, interpretation of law is required. So, in our view, the appellant was under the bona fide belief of the interpretation of law. When it is so, then we are of the view that the penalty is not sustainable in the instant case and the same is hereby cancelled. In the result, the appeal filed by the appellant is partly allowed