9911796707
TMI Blog2009 (7) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider in convertible foreign exchange and in the case of appellant, the services were delivered within his own premises in India and received charges in Indian currency only and hence, the appellant s service cannot be treated as export of service ; that basing on the aforesaid facts, a SCN dated 31-7-2007 was issued directing the appellant to show cause as to why the Service tax amounting to Rs. 21,99,578/- and education cess of Rs. 26,593/- for the period 1-7-2003 to 31-12-2005 should not be demanded under Section 68 of the Finance Act, 1994 (hereinafter referred as the Act), interest should not be recovered under Section 75 of the Act and penalty under Sections 76 and 78 of the Act should not be imposed; that the SCN also alleges suppression of facts and accordingly attracting proviso to Section 73 of the Act; that on adjudication, rejecting the contention of the appellant that they have carried out manufacturing activity of old bare shafts, confirmed the Service tax raised in the SCN-cum-Demand Notice along with interest, besides imposing penalty under Section 76 and double penalty under Section 78 of the Act; that an opportunity has also been given to the appellant to exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f existence of specific shaft numbers; (vii) that the appellant from the beginning had been submitting that the description of the activity given in the PO is wrong and the same wrong description was repeated in the Central Excise invoices/ ARE 1s. However, going by real nature of the transaction, it is a manufacturing transaction and not a reshelling transaction; (viii) that it is wrong to hold that a transaction as repairing activity merely because in the POs, it is described as repairing activity and the appellant relies on the decision in the case of Snow White Industrial Corporation v. CCE - 1989 (41) E.L.T. 360 (S.C.) and Faquir Chand Gulati v. Uppal Agencies Pvt. Ltd. - 2008 (12) S.T.R. 401 (S.C.); (ix) that it is even for the sake of argument that the said 69 exported rollers are falling under repair and maintenance service, still the appellant will not be liable to pay any Service tax, since they were exported prior to 16-6-2005 where the repair/maintenance of goods under maintenance contract/agreement only was taxable and the so called repair of the said 69 exported rollers done by the appellant is against the work order and not against the maintenance agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non availment of credit but the SCN-cum-Demand Notice was issued only on 31-7-2007 which was served on the appellant on 21-8-2007 and hence the demand is time barred in view of the following decisions - (a) Mohan Bakes Pvt. Ltd. v. CCE - 2008 (221) E.L.T. 308, (b) Shree Uma Foundries v. CCE - 2009 (15) S.T.R. 728 = 2008 (222) E.L.T. 317; and (c) Bhuwalka Steel Industries v. CCE - 2008 (221) E.L.T. 139; (xvi) that the Commissioner (Appeals) while deciding the eligibility of credit covering the same period, has held that the demand is time bared which is also squarely applicable to the present issued; (xvii) that the Joint Commissioner has also failed to provide any reasons for imposing double penalty under Section 78. 3. PH was held on 6-7-2009 at 03.00 PM. Shri V.B. Gaikawad, Advocate, duly authorized by the appellant appeared before me at 03.00 PM. None appeared from Department s side despite intimation. During the hearing, the Advocate reiterated the submissions made in the appeal memorandum and submitted the copies of relied upon case laws. 4. I have gone through the case records including record of PH and cases relied upon by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Saraswati Industrial Syndicates v. CCE supra. 4.1 From the above submission, it is seen that on an earlier occasion the Department wanted to deny the Cenvat credit to the appellant on the ground that their activity do not amount to manufacture. For the same period, the Department has issued another SCN dated 31-7-2007, which is the subject matter of the present appeal, demanding Service tax on the ground that the appellant received old sugar mill rollers and undertaken repairing activity and hence, cannot be considered as manufacturing activity and therefore, the Service tax is payable under repair and maintenance service. In the instant case, the lower authority has come to the conclusion that the activity of the appellant cannot be considered as manufacturing activity but repair and maintenance service holding that they (the appellant ) have enclosed a few copies of Purchase orders (POs) showing that they had received old bare shafts along with delivery challans and also a few POs in respect of exported rollers along with Bills of Entry. It is observed from the annexure to the SCN that there were 69 cases of export invoices involved. The service provider has tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN itself, the appellant had enclosed entire documents for perusal. The appellant while filing appeal also, has enclosed the POs with the supporting documents i.e. Bills of entry, copies of disputed Central Excise invoice along with ARE 1s. The appellant also has enclosed copies of POs received for reshelling of old bare shafts along with delivery challans from the Indian customers and copies of invoices for clearances of sugar mills roller on payment of duty. I have perused the documents enclosed along with appeal memorandum. The POs contain that the appellant received old shafts at their factory which fact is also supported by Bills of Entry. For example, Bill of Entry No. 628397 dated 1-6-2004 contains the description as 7 PIECES MILL ROLLER SHAFT FOR RESHELLING AND RE-EXPORT . Likewise, in the same way, another Bill of Entry No. 955989 dated 27-1-2004 contains description as SONY SHAFT - 5 REPAIR PURPOSE AND RETURN BACK TO KEN . Likewise, the PO placed by the Indian agent on behalf of foreign customers also contains invariably the reference towards import of old shafts. A few examples are as follows - (a) PO No. SEC/EXP/1604/2003-04 dated 16-3-2004 Sl. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and maintenance service, since the appellant cannot be taxed twice. 5. The appellant also contends that the Demand-Cum-SCN was fully time barred in as much as the SCN was issued after a normal period of one year from the date of acquiring knowledge of the activity of the appellant. In the instant case, the Department has acquired knowledge on 24-11-2004, whereas the SCN was issued on 31-7-2007 and accordingly, the Demand is fully time barred as held by the Apex Court in the recent judgment in the case of M/s. Kushal Fabricators Pvt. Ltd. v. CCE - 2009 (238) E.L.T. 21 (S.C.). In the above case, the Apex Court has held that the suppression stopped the moment the appellant informed their activity and thereafter only a normal period is available . In the instant case also, the Department informed the appellant vide letter dated 24-11-2004 and the appellant replied the department vide their letter dated 15-2-2005, 21-4-2006. Whereas the SCN was issued on 31-7-2007 i.e. clearly after two and half years. Thus, as stated above, the SCN is fully time barred. Under the above circumstances, the appellant has not only succeeded on merits but also on time bar aspect. 6. It is also the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
