9911796707
TMI Blog2011 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... d challenges the order dated 12.6.2009, passed by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Bench, Kolkota, in S.T. Appeal no.163 of 2008 ( M/s H.T. Media Vrs. Commissioner of Central Excise & S. Tax, Patna), whereby the order dated 28.5.2008 (Annexure-3), passed by the learned Commissioner of Central Excise and Service Tax, Patna has been set aside, and the assessee (respondent herein) has been directed to make full payment of service tax for the period January 2005 to March 2005, without the benefit of abatement of tax. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. It is with respect to the period January 2005 to March 2005. The assessee is engaged in the business, inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note may suffice. In view of the clarificatory circular dated 27.7.2005, the assessee submitted his application on 20.10.2005, for refund of Rs.1,26,471/-, being the amount of abatement on service tax to the extent of 75 percent. After hearing the parties, the learned Adjudicating Officer passed order dated 28.12.2006, directing refund of Rs.1,10,854/-. 2.3. Aggrieved by the order of refund of 28.12.2006, the learned Commissioner of Central Excise suo motu invoked the powers under section 84 of the Finance Act 1994, and issued notices to the concerned parties to show-cause as to why the said order dated 28.12.2006, be not set aside. On a consideration of the materials on record and after affording reasonable opportunity to the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated hereinabove that, in view of the provisions of the Finance Act 1994, as understood during the period in question, the assessee had on different dates from January 2005 to March 2005, deposited the service tax totalling a sum of Rs.41,006/-. After expiry of the period, they submitted the returns. It is further evident that, on the penultimate day of the period in question, the authorities issued clarificatory circular dated 30.3.2005, to the effect that the benefit of abatement of service tax to the extent of 75 percent shall be available to G.T.A, and not to the consignor or the consignee. It further appears to us that the authorities realised the fault which had occurred in the circular dated 30.3.2005, and issued another clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified by the circular dated 27.7.2005. We are of the view that, in such a situation, coupled with the bona fides clearly attributable to the assessee, the benefit of the circular dated 27.7.2005 would be available to the assessee. After issuance of the circular dated 27.7.2005, the assessee submitted his application dated 20.10.2005 for refund. Nearly seven months had lapsed from the last date of the period in question. Coupled with this is the law-abiding spirit of the assessee that, in view of the quondam circular dated 30.3.2005, the assessee deposited a sum of Rs. 1,08,153/- on 6.5.2005, and further sum of Rs.3,442/- on 12.5.2005. 7. In such a situation, the primary question for consideration is whether or not, at this belated sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are of the view that the same had adequate evidentiary value in a situation of confusion created by the authorities by issuance of the redundant circular dated 30.3.2005. We consider the evidence produced by the assessee to claim the benefit of abatement and consequent refund to be surely in substantial compliance of circular dated 27.7.2005. 8. The Supreme Court has held in its judgment dated 18.11.2010, passed in Civil Appeal Nos. 1878-1880/2004 (CCE Vs.Hari Chand Shri Gopal) as follows: " Para 24 the Doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cult for the assessee to obtain declaration by G.T.A. on the consignment note, not being a mandatory condition. We are of the view that the evidence produced by the assessee has rightly been accepted as valid by the learned Adjudicating Officer. The learned Commissioner erred in setting aside the same on a hyper-technical view of the matter, and erroneously passed the order dated 28.5.2008. In that view of the matter, we uphold the order of the learned Tribunal of 12.6.2009. We set aside the order of the learned Commissioner passed on 28.5.2008, and restore that of the learned Adjudicating Officer passed on 28.12.2006. 10. In the result, this appeal is dismissed. The order dated 12.6.2009, passed by the learned Tribunal is hereby upheld. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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