2011 (6) TMI 99 - AT - Service Tax

Waiver of pre- deposit - GTA services availed - Demand of duty and penalty confirmed on the ground that no declaration stands made by the transporters on the consignment notes that they have not availed the benefit of input credit or capital goods credit - the issue is squarely covered by the precedent decision of the Tribunal in the case of Shah Alloys (2009 -TMI - 34742 - CESTAT AHMEDABAD) - Held that the appellant has been able to make out a good prima facie case in its favour so as to allow the stay petition unconditionally - The appeal does not stand decided by the Commissioner (Appeal) on merits - Accordingly set-aside the impugned order and remand the matter to Commissioner (Appeal) for decision on merits without insisting on any pre-deposit.

Summary

Issues:
Demand of duty and penalty imposition based on denial of abatement benefit for GTA services due to lack of declaration on consignment notes.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Ahmedabad involved the confirmation of a duty demand of Rs. 61,631/- along with a penalty of the same amount against the appellants. This confirmation was due to the denial of the benefit of 75% abatement in terms of Notification No. 32/2004-ST dated 03.12.2004 for GTA services availed by them. The ground for denial was the absence of a declaration on the consignment notes from the transporters stating that they have not availed the benefit of input credit or capital goods credit.

Upon review, it was found that the appellants had indeed filed such declarations. However, the Commissioner (Appeal) rejected them on the basis that they did not reflect the date of making the declaration and lacked the stamp of the transporting agency. Additionally, doubts were raised regarding the authorization of the person making the declarations. The Commissioner's decision led to the dismissal of the appeal for non-compliance, despite the earlier Tribunal decision in the case of Shah Alloys 2009-TIOL-1754-CESTAT-AHM being in favor of the appellants.

The Tribunal, after hearing both sides, determined that the issue was conclusively covered by the precedent set in the case of Shah Alloys. Consequently, the Tribunal acknowledged that the appellants had established a strong prima facie case in their favor, warranting the stay petition to be granted unconditionally. Notably, the appeal had not been decided on its merits by the Commissioner (Appeal). Therefore, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeal) for a decision on merits without requiring any pre-deposit. The stay petition and the appeal were disposed of accordingly.