2011 (3) TMI 199

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....ade holding that Notification No.33.04 dated 3.12.04 was not applicable to the appellant.   2. Appellant s claim before ld. Adjudicating authority was that it is governed by Notification No.33/04 dated 3.12.2004 to enjoy service tax exemption in respect of service provided by Goods Transport Agency in relation to transport of fruits, vegetables, eggs or milk by road in a goods carriage since canned mushroom is vegetable.   3. Appeal Record at page 35 reveals that when enquiry was conducted, one Shri Hardev Singh, Executive of the Appellant when examined u/s section 14 of Central Excise Act 1944 to find out the process undertaken by the Appellant to get canned mushroom, he stated that: On being asked about the manufacturing p....

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....tables. Such plea of the appellant was discarded by the ld. Adjudicating Authority examining the processes adopted by the appellant to get the output as canned mushrooms. He therefore denied the benefit of exemption claimed under Notification No.33/04 dated 3.12.2004. Decision of the learned Adjudicating Authority was found to be proper by the learned first Appellate Authority below.   5. Carrying the aforesaid dispute to Tribunal alongwith the appeal, the appellant made a stay application for stay of realisation of demand of service tax of Rs. 51,817/- followed by other consequences of law.   6. Ld. Counsel Shri Rupender Singh arguing on behalf of the appellant submitted that canned mushrooms are vegetables which entitles t....

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....difference between mushroom and canned mushroom holding the later not vegetable to enjoy exemption in terms of the aforesaid notification. The Authorities below have neatly brought out what canned mushroom means and how that is different from mushroom. The statement recorded u/s 14 of the Central Excise Act, 1944 remained controverted before us. The reasoning for the decision given by the Authorities below enabled us to decide the appeal itself on its merit without keeping the same pending. Accordingly we dispense pre-deposit and proceed to decide the appeal with the consent of both sides.   9. We have gone through the statement recorded and as extracted to the extent that is relevant for the decision as aforesaid. The word vegetabl....