TaxTMI 
TaxTMI 
2020 (3) TMI 851
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....nt (s) ORDER P.K.CHOUDHARY : The present appeal has been filed by the appellant against the common Order-in-Appeal No.26-28/ST/BBSR-II/2009 dt.10.07.2009, passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, Bhubaneswar. The said Order-in-Appeal disposed of three Orders-in-Original No.11/RKL-II/2008 dt.21.05.2008, No.23/RKLII/ 2008 dt.06.11.2008 and No.25/RKL-II/2008 dt.18.11.2008 passed by the Asst. Commissioner, Central Excise, Customs & Service Tax, Rourkela-II Division, Rourkela rejecting the following three refund applications filed by the appellant. S.N Period Amount Filed on 1. 29.07.2005 to 05.10.2006 39,43,875 03/06.11.2006 2. Sept,2006 to May,2007 18,20,711 26.04....
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....applications, mentioned above, under Sec.11B of the Central Excise Act,1944 relating to the period July,2005 to February,2008. The refund claims were rejected by the Jurisdictional Asst. Commissioner, Central Excise, Rourkela-II Division, vide three separate Orders-in-Original mentioned above, holding that the Exemption Notification No.34/2004- ST dt.03.12.2004, claimed by the appellant, is not applicable in the present case. 5. Appeals filed by the appellant against the three adjudication orders referred to above, passed by the Asst. Commissioner, were disposed of by the Commissioner (Appeals) vide common Order-in- Appeal bearing No.26-28/ST/BBSR-II/2009 dt.10.07.2009, upholding the orders passed by the Asst. Commissioner, Central Excis....
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....ch are placed at pages 11 - 23 of the appeal paper book. The iron ore raised from the mines are weighed at the mining site, by the representatives from the Department of Mines, Govt. of Odisha. After the weight of the material is accepted, the said Government authorities issued documents known as Transit Pass in 'Form-G', containing all relevant particulars. Basing on the Form-G, royalty amount payable to the Government is determined. After completion of procedural formalities and payment of royalty, the iron ore is transported from the mining site to the appellant's crusher plant, accompanied by 'Form-G'. It is pertinent to note that no document, other than the transit pass in 'Form-G' accompanied with the consignment, during the transport....
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....e of the appellant. The only document which accompanied the goods during transit, is the Transit Pass in 'Form-G' issued by the Mining Department, Govt. of Odisha. (v) It is also submitted that as per the trade practices, consignment note is a document of title, when a person deposits the goods with the transporter for the purpose of transportation to the destination, for which the transporter issues a Lorry Receipt (LR), which is called a consignment note. The said LR/Consignment note, in original, is sent by the consignor to the consignee, either directly or through the authorized bank. The consignee, on the strength of the consignment note, collects the goods from the transporter. In view of the position stated above, it is resp....
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....cs Pvt. Ltd. = 2019 (22) GSTL - 237 (Tri- Mum). 4. Shreenath Mhaskoba Sakhar Karkhana Ltd. Vs. CCE, Pune = 2017 (3) GSTL - 169 (Tri-Mum). 5. Commr. Of C. Ex & S. Tax, Aurangabad Vs. Jaikumar Fulchand Ajmera = 2017 (48) STR-52 (Tri-Mum). 9. The learned Advocate submits that in all the above cases, it was held that transportation of goods, without issue of any consignment note, in terms of Rule 4B of Service Tax Rules,1994, will not come under definition of GTA service, in terms of Sec.65(105)(zzp) read with Sec.65(50b) of the Finance Act,1994. 10. In view of the above position of law, the learned Advocate prayed for allowing the misc. application and decide the main appeals in the light of the law laid down by the Tri....
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.... In this connection, we take note of the decision of the Hon'ble Surpeme Court (Three Member Bench), in the case of National Thermal Power Co. Ltd. Vs. Commissioner of Income Tax, reported in 1998 (99) ELT - 200 (SC), which is to the effect that the Tribunal has jurisdiction to examine the question of law which arises on facts, as found by the authorities below, and having bearing on tax liability of assesse, even though said question was neither raised before the lower authorities nor in appeal memorandum before the Tribunal, but sought to be added later as an additional ground by a separate letter. 14. In view of the specific provision under Rule 10 of the CESTAT Procedure Rules and the law laid down by the Hon'ble Supreme Court in t....