TaxTMI 
TaxTMI 
2022 (11) TMI 562
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....ribunal arise out of the same proceedings of the original authority namely, the Deputy Commissioner of Central Excise, Service Tax Cell vide Order-in-Original No.45/2003 dated 16.01.2004. 5. The dispute in these appeals pertains to the period between 1999- 2000 and 2002-2003. The appellant was issued with a Show Cause Notice dated 07.07.2003 by the Deputy Commissioner (Service Tax Cell), Chennai II Commissionerate, to show cause as to why the service provided by the appellant to M/s.Grasim Industries Limited, White Cement, Division, Jodhput should not be treated as taxable service of a clearing and forwarding agent as defined in Section 65(16) read with Section 65(72)(j) of the Finance Act, 1994 [Chapter V - Service Tax Act]. 6. Section 65(16) of the Finance Act, 1994 [Chapter V - Service Tax Act] defined the expression 'clearing and forwarding agent'. Section 65(72)(j) of the Finance Act, 1994 [Chapter V - Service Tax Act] defined the expression 'taxable service' of a clearing and forwarding agent. 7. Both Section 65(16) and Section 65(72)(j) of the Finance Act, 1994 [Chapter V - Service Tax Act] read as under:- Section 65(16) of the Chapter V of the Finance Act, 1994 (Service....
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....(M-II) (ST) before the Commissioner of Central Excise (Appeals) [hereinafter referred to as "Appellate Commissioner"]. The Appellate Commissioner vide Order-in- Appeal No.81/2004 (M-II) (ST) dated 03.08.2004, allowed the appeal filed by the appellant by placing reliance of the decision of the Tribunal in Mahavir Generics Vs. CCE, Bangalore, 2004 (95) ECC 54 (T). 12. A review was filed by the revenue before the Commissioner of Service Tax. The Commissioner of Service Tax vide order dated 09.11.2004 in C.No.IV/3/J4/2004-CFA, in exercise of powers vested under Section 86(2A) of the Finance Act, 1994 [Chapter V - Service Tax Act], directed the Deputy Commissioner of Service Tax, Chennai II Division, to file an appeal before the Customs, Excise and Service Tax Tribunal, Chennai [hereinafter referred to as "Appellate Tribunal"] under Section 86 of the Finance Act, 1994 [Chapter V - Service Tax Act] against the order dated 03.08.2004 of the Commissioner (Appeals) in Order-in-Appeal No.81/04 (M-II) (ST). 13. Thereafter, the Deputy Commissioner of Central Excise, Chennai II Commissionerate, Service Tax Cell filed an appeal in Appeal No.S/100/2004 before the Appellate Tribunal against the ....
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....eals were admitted on 07.03.2008 and 17.03.2010 respectively on the following substantial question of law: C.M.A.No.951 of 2008 i. Whether the Tribunal, in the facts and circumstances of the case, was correct in going beyond the scope of the notice and the order of the original authority to make out an order in favour of the revenue by concluding that the appellant obviously maintained a depot as per the agreement and the same could be for no purpose other than dealing in the goods cleared to the service agent by their principal, inspite of the strong denial of the above fact by the appellant which denial is supported by the various documentary evidences on record including the clear finding of the original authority that they do not physically deal with the goods? ii. Whether the Tribunal was correct in holding that the definition of 'Clearing and Forwarding Agent' was couched in a language which admitted wide meaning and scope placing reliance on the Tribunal's decision in Prabhat Zarda Factory which was delivered a day prior to the Board's Circular dated 20.02.02 wherein the Board has made it clear that the parameters of clearing and forwarding operations spelt out in their....
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....Service Tax Act]. 21. It is submitted that only a statutory appeal before the Hon'ble Supreme Court was maintainable on such issues and therefore, appeals filed by the appellant in C.M.A.Nos.951 of 2008 & 696 of 2010 are liable to be dismissed. It is submitted that no statutory appeal has been filed by the revenue against the Final Order No.1296/09 dated 09.09.2009 in Appeal No.S/253/07. 22. It is further submitted that issue having attained finality by the Tribunal in the first round vide Final Order No.808/2005 in Appeal No.S/100/2004 dated 03.06.2005 which has been impugned in C.M.A.No.951 of 2008, question of imposition of penalty further cannot be tested under Section 35G of the Central Excise Act, 1944 read with Section 83 of of the Finance Act, 1994 [Chapter V - Service Tax Act]. 23. We have considered the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondents. We have also perused the provisions of the Finance Act, 1944 [Chapter V - Service Tax Act] as it stood during the relevant period and Section 35-G of the Central Excise Act, 1944 as made applicable to the Section 83 of the Finance Act, 1944 [Chapter V - Service Tax A....
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....Madras Bar Association case referred to supra, the amendments brought out by the National Tax Tribunal Act, 2005 and the corresponding amendments to the provisions of the Central Excise Act, 1944, the Customs Act, 1962 and the Finance Act, 1944 [Chapter V - Service Tax Act] were not given effect to and therefore, the High Court continues to exercise its appeal late jurisdiction. 29. The expression used in 35-G(1) of the Central Excise Act, 1944 cannot be pressed into service in the manner in which it was argued by the learned counsel for the respondents as the service tax dispute regarding the taxability and leviability does not come within the purview of expression "not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment". 30. There are no separate provisions for different rate of tax under the Finance Act, 1944 [Chapter V - Service Tax Act] during the period in dispute for same service. Service Tax was payable at uniform rate for all services under Section 65(72) of the Finance Act, 1944 [Chapter V - Service Tax Act] as it stood then and later under ....
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....auxiliary support service such as billing, collection or recovery of cheques, accounts and remittance, evaluation of prospective customer and public relation services, and includes services as a commission agent, but does not include any information technology service. Explanation.- For the removal doubts, it is hereby declared that for the purpose of this clause "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerized data processing or system networking, or any other service primarily in relation to operation of computer systems; 35. The decision of this Court in S. Senniappa Mudaliar V. The Government of Madras, (1965) ILR 2 Mad 397 was followed by a Full Bench of the Kerala High Court in M.Syed Alavi and Others Vs. State of Kerala, (1981) 48 STC 150 (Ker). It held that an order of remand remanding a case back is to be held as an interlocutory order. The Court further held that while the authority passing order pursuant to remand order was bound by remand order, the Appellate Courts / Authorities are not bound by it. 36. In particular, paragraph No.17 from the decision of the Full Bench of ....