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2013 (1) TMI 353 - HC - Central ExciseGoods Transport Agency Service - abatement of 75% of the gross amount charged from the customer under Notification No. 32/2004-S.T., dated 3-12-2004 - denial of abatement claim based on general declarations given by the GTA - Held that - Abatement of CENVAT Credit to the extent of 75% on the basis of the general declarations filed by the respective Goods Transport Agencies is not to be denied. 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 - dismissed the revenue s appeal relying on the previous decision of the Tribunal reported in 2007 (12) TMI 74 - CESTAT AHMEDABAD .
Issues:
1. Interpretation of provisions of Section 37 about binding effect of Circular for availing exemption notification. 2. Determination of whether conditions imposed by a Circular for availing exemption are mandatory. 3. Justification of considering 'general declarations' by the GTA for dropping the demand of Service Tax. 4. Rejection of departmental appeal and confirmation of Order-in-Original regarding interest and penalty imposition. Analysis: Issue 1: The appellant challenged the interpretation of Section 37 regarding the binding effect of Circular for availing exemption notification. The Tribunal concluded that the Circular's requirements were not mandatory and could not be used to deny substantive rights. The Tribunal emphasized that the notification did not stipulate the conditions mentioned in the Circular, and since the service tax had been paid, the Commissioner's order was deemed fair and just. The Tribunal's decision was final as there was no appeal against it, preventing the Revenue from challenging the order. Issue 2: Regarding the determination of whether conditions imposed by a Circular for availing exemption were mandatory, the Tribunal clarified that the Circular's requirements could not be mandatory for denying substantive rights. The Tribunal highlighted that the notification did not specify the conditions mentioned in the Circular. Since the appellants had paid the service tax and received the service, the Commissioner's order was considered just and fair, warranting no interference. The Tribunal emphasized that the Revenue could not challenge the order as there was no appeal against it. Issue 3: The Tribunal justified considering 'general declarations' by the GTA for dropping the demand of Service Tax under Section 73(1) of the Finance Act, 1994. The Tribunal found that the Commissioner's order was fair and did not require any interference. The Tribunal noted that in the absence of an appeal against its order, the decision became final, preventing the Revenue from challenging it. Issue 4: The Tribunal rejected the departmental appeal and confirmed the Order-in-Original passed by the Commissioner, who did not charge interest and impose penalties as prescribed in the Finance Act, 1994. The Tribunal upheld the Commissioner's decision, emphasizing that the appeal was dismissed as no substantial questions of law arose. The Tribunal found that the issues were purely factual, leading to the dismissal of the appeal. In a similar case, Tax Appeal No. 523 of 2010 was dismissed based on the substantial compliance with the procedure provided in the Notification dated 3-12-2004. The Tribunal concurred with the Commissioner (Appeals) and dismissed the Revenue's appeal, as no substantial questions of law were raised. The decision was not challenged, leading to the dismissal of the appeal.
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