2014 (2) TMI 958 - AT - Service Tax

Appellate ruling favors assessee, overturns service tax on delivery charges, citing lack of valid Committee opinion.

CCE, Raipur Versus M/s Narmada Drinks (P) Ltd.

The appellate authority ruled in favor of the assessee, stating that the levy of service tax on delivery charges was not sustainable as service tax on ... Maintainability of Revenue appeal - Review of order by the Committee of Chief Commissioners - Valuation - GTA service - inclusion of delivery charges collected from the customers - Held that:- the proposition in the judgement in Bhushan Ltd [2008 (10) TMI 397 - CESTAT, NEW DELHI] does not reflect the correct position in law. There may be instances where one Commissioner alone records a decision to review. Illustrations may be multiplied. The essential fact however is that the decision of Committee of Commissioners or Chief Commissioners as the case may, be is a sine qua non for a legitimate appeal to be preferred and if such opinion is absent either because of a fundamental infirmity in the composition of the Committee or on account of absence of a manifestation of opinion, there would be no valid decision in the eye of law and consequently no valid appeal could be said to have been preferred. - Following the decision of Delhi High Court judgement in Kundalia Industries [2012 (8) TMI 789 - DELHI HIGH COURT], appeal dismissed - decided against the revenue. Issues:- Appeal against service tax demand and penalty- Application for rejection of Revenue's appeal- Review process of Committee of Commissioners- Compliance with statutory provisions for appealAnalysis:1. The judgment pertains to an appeal by the Revenue against an order passed by the Commissioner (Appeals-I) concerning service tax demand on transportation of goods by road service. The appellate authority ruled in favor of the assessee, stating that the levy of service tax on delivery charges collected from customers was not sustainable as the assessee had already remitted service tax on freight charges paid to third parties. Hence, no further tax liability, penalty, or interest was deemed applicable for the period in question.2. The respondent/assessee sought rejection of the Revenue's appeal, arguing that the Committee of Commissioners failed to record an independent opinion after due consideration, as required by law. Citing previous tribunal decisions, it was contended that an appeal by the Revenue is not maintainable if the Committee does not manifest due application of mind for preferring an appeal.3. The review process of the Committee of Commissioners was scrutinized, where it was revealed that the note prepared by an Inspector (Review) was signed by the Committee members without a specific manifestation of meaningful consideration. The respondent's counsel argued that this process did not demonstrate the application of mind by the Committee.4. The judgment delved into the compliance with statutory provisions for appeal, referencing previous decisions and the requirement for a valid decision by the Committee of Commissioners for a legitimate appeal to be preferred. It was emphasized that the absence of a manifest application of mind and recording of opinion by the Committee rendered the appeal invalid, following the principles laid down by the Delhi High Court and previous tribunal judgments.5. Ultimately, the appeal by the Revenue was rejected based on the lack of a proper opinion recorded by the Committee of Commissioners, as only signatures were appended on a note prepared by lower-ranking officers. The judgment highlighted the necessity for a valid decision by the Committee to support the legitimacy of an appeal, in line with established legal principles and precedents.