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TMI Blog2018 (1) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, Members Shri Devnath, Vivek Sharma, Advocates, Amit Vyas and Manan Sharma, CAs, for the Assessee. Shri Ajay Gupta and D.D. Sharma, Superintendents, for the Department. ORDER This order disposes of Settlement application numbers 5323/2016 and 5325/2016 filed on 14-12-2016/26-12-2016 and 5327/2017 filed on 3-1-2017 by M/s. Tanushree Logistics Pvt. Ltd. (hereinafter referred to as applicant / applicant firm ) under Section 32E of Central Excise Act, 1944 (in short the Act ) as made applicable to Service Tax vide Section 83 of the Finance Act, 1994 to settle the disputes arising out of Show Cause Notices No. V(H) Adj-I/ST/200/2014, dated 15-10-2014 and C.No V (H) Adj/ST/95/2015, dated 14-10-2015 issued by the Commissioner of Central Excise, Jaipur. 2. The fact of the case, in brief, as per SCNs are that applicant was providing trucks/trailers to M/s. Shree Cement Ltd and classified such services under category of Goods Transport Agency (GTA) . The Service Tax liability on the said service was discharged by M/s. Shree Cement Ltd under reverse charge mechanism. It has been alleged in the SCN that services provided by applicant fall under the category of Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty and prosecution. The applicant vide letter dated 20-12-2016 submitted that in addition to admitted liability towards Service Tax already deposited by Service recipients under reverse charge mechanism, they have deposited ₹ 3,00,000/- in compliance to 3rd proviso to sub-section (1) of Section 32E. 7. A Notice dated 20-12-2016 was issued to the applicant wherein the applicant was asked to explain why his application should be allowed to be proceeded with since (i) Single application had been filed in respect of 2 show cause notices, (ii) No application has been filed by co-applicant Shri Arvind Bankat Lal Sharda, however request for wavier of penalty had been made, (iii) Certified copies of relied upon documents had not been submitted, (iv) Challans; showing Duty payment by Service recipient has not been enclosed, (v) Complete ST3 returns for the disputed period had not been enclosed, (vi) Copy of agreement between applicant and M/s. Shree Cements Ltd had not been enclosed, and, (vii) Pages from 246-250 containing details of CN register were not legible. 8. The applicant in their reply dated 23-12-2016 submitted that they would file separate application in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst two Settlement applications are not with reference to any Service claimed to have been provided and disclosed; that the amount of ₹ 3 lakhs each was deposited to circumvent the provision of Section 32E(1) to get the application admitted, which otherwise was not maintainable; (iii) in terms of 4th proviso to sub-section (1) of Section 32E, no application under this sub-section shall be made for the interpretation of the classification of Excisable goods under the Central Excise Tariff Act, 1985, which apply mutatis mutandis to Service Tax matters in terms of Section 83 of the Finance Act, 1994, and therefore matter relating to interpretation of classification of taxable Services cannot be brought for Settlement in terms of Section 32E. 13. On a request by the applicants, copy of the Jurisdictional Commissioner s report dated 7-3-2017 enclosing their letter dated 27-2-2017 was provided to the applicant. The applicant vide letter dated 20-3-2017, submitted further comments on the Jurisdictional Commissioner s report and stated that essence of SCN is not really on the issue of classification and the same transaction cannot be taxed twice; that applicant is responsib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nath was contested by the Department and it was submitted that the Service Tax liability depends upon the classification and also that the SCN covers even the period prior to the introduction of Negative list. 17. Shri Devnath, Advocate was informed in case they wish to make any further submissions, they may do so within a period of seven days. 18. The applicants vide his letter dated 5-4-2017 stated that they were under the impression that the matter stands admitted and any preliminary issue on admission does not arise; that they had come prepared to be pleaded the merit of the case, which unfortunately was not permitted to be pleaded and that despite admitting the application, stress was laid on re-examining the issue in light of classification. The applicant prayed for another hearing and stated that they would make submissions at the time of personal hearing. 19. We have perused the case records and the submissions made during the hearing held on 22-3-2017 and find that as per Section 32E(1), an application for Settlement of a case pending before an adjudicating authority can be filed if, besides other conditions, the additional amount of duty accepted by the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the fourth proviso to sub-section (1) of Section 32E made applicable to Service Tax as per Section 83 of the Finance Act, 1994 expressly prohibits making an application for settlement for the interpretation of classification. The argument of the Advocate Shri M.P. Devnath, during the hearing held on 22-3-2017 that consequent upon the introduction of Negative List, there cannot be any classification disputes is far fetched as the valuation of services and duty liabilities and abatements continue to depend upon the classification of services. This, coupled with the fact that no duty liability has been accepted by the applicant in relation to the cases for which the settlement applications have been filed as required under clause (c) of the first proviso to sub-section (1) of Section 32E of Central Excise Act, 1944, makes the applicant ineligible to approach the Settlement Commission in the present form. 21. The applicants during the hearing on 22-3-2017 was asked to submit any further written submissions within a period of seven days. The applicant did not file any written submission but in letter dated 5-4-2017 has requested for another hearing. In the said letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a full and true disclosure need not be examined and authoritatively determined at the threshold of any proceedings initiated before the Commission under Chapter V. There may be cases where it is possible for the Commission to record a finding that the disclosure made in the application is full and true . There may, however, be situations in which the Commission may not be able to, at the stage of admission of the application, record a finding with any amount of certainty. In any such situation, it will not be legally impermissible for the Commission to keep the question open as it has done in the instant case to be examined at a later stage or at the stage of final disposal of the application . This position has been maintained by Hon ble Supreme Court. [2006 (201) E.L.T. A130 (S.C.)]. 25. Similar views have also been held by Hon ble Delhi High Court in case of DGCEI v. Murari-Lal Harish Chander Jaiswal Pvt Ltd. [2013 (291) E.L.T. 484]. 26. Even otherwise the applicants were informed under the Commission s letter dated 17-1-2017 that their applications have been admitted subject to the condition that the applicants show at the time of final hearing that they fulfil the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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