TaxTMI 
TaxTMI 
2024 (5) TMI 276
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....on of coal within and outside their mining area. Initially, the Headquarters of the appellant at Bilaspur was served with a Show Cause Notice No. 19847 dated 20.11.2006 for demand of service tax on GTA Services under Reverse Charge Mechanism (RCM). The Order-in-Original confirming the said demand has been set aside by this Tribunal vide its Final Order No. 53209/2014 dated 13.08.2014 holding that since the transporters rendering services within the mines are not issuing consignment notes, the said services provided to M/s. South Eastern Coalfields Ltd. (hereinafter referred as M/s. SECL)cannot be said to be a GTA Service and M/s. SECL cannot be made liable to pay service tax under RCM as recipient of GTA Service. 1.2 Pursuantto the said final order dated 13.08.2014, the appellant filed the refund claim for Rs.1,03,91,677/-on 29.07.2015. The said refund claim was proposed to be rejected vide Show Cause Notice No. 413 dated 28.08.2015 alleging that the refund claim is filed after the expiry of time limit prescribed for the same. The said proposal was confirmed vide Order-in-Original No. 11/15-16 dated 21.09.2015. In an appeal against the said order Commissioner (Appeals) vide Orde....
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.... passed in sheer ignorance of judicial discipline. The Commissioner (Appeals) while remanding the matter vide order dated 22.11.2016 has already held that the activity in question is not classifiable as Goods Transport Agency. The matter was remanded for a very limited purpose of verification of the documents already on record or to be produced additionally by the appellant. The order holding the same activity as GTA contrary to the said earlier order is absolutely illegal and unwanted for, same is liable to be set aside. Reliance has been placed on the following decisions: (i) South Eastern Coalfields Ltd. Vs. Commissioner of C.Ex., Raipur reported as 2016 (41) S.T.R. 636 (Tri.-Del.) (ii) Commissioner of C.Ex., Cus. & S.T., Bilaspur Vs. South Eastern Coalfields Ltd. reported as 2016 (41) S.T.R. 608 (Chhattisgarh) (iii) South Eastern Coalfields Ltd. Vs. Commissioner of C.Ex., Raipur reported as 2017 (47) S.T.R. 93 (Tri.-Del.) 4. Learned Departmental Representative on the other hand has held that the adjudicating authority while passing the order under challenge has relied upon the decision of Hon'ble Supreme Court, wherein the similar activity in the s....
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.... Court of Chhattisgarh is still pending consideration before Hon'ble Supreme Court, however, no stay against execution of order challenged is being announced by Hon'ble Supreme Court. 5.3 The impugned refund claim, however, was already filed by the appellant on 29.07.2015. It is with respect to this refund application that the impugned show cause notice dated 28.08.2015 was served upon appellant and is being adjudicated in the manner as discussed above. 5.4 We further observe that Commissioner (Appeals) while remanding the matter vide order dated 22.11.2016 has already held in compliance of earlier decisions as mentioned in preceding Para that the activity in question is not classifiable as Goods Transport Agency. However, he remanded back the matter to original authority for a very limited purpose of verification of the documents already on record or to be produced additionally by the appellant. It has been held in the said order that final order of Tribunal dated 28.07.2016 (after remand order from Hon'ble High Court of Chhattisgarh) has reaffirmed that since the transporters were not issuing consignment notes, the services rendered by them to M/s. SECL (company as a whole)....
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....whether any stay has been obtained by the department against the final order dated 28.07.2016. 5.8 These observations are sufficient for us to hold that the scope of remand was a simple factual verification but the original adjudicating authority in sheer violation of judicial discipline has readjudicated the issue about impugned activity to fall or not under the scope of GTA Services. As already observed above, the same was not the point raised even in the impugned show cause notice. The orders under challenge in both these appeals are not only an outcome of judicial indiscipline but are also held to be beyond the scope of show cause notice. Commissioner (Appeals) vide the impugned order has tried to distinguish as far as the principles of res judicata shall or shall not apply to the given facts. 5.9 It is observed that there is a fundamental material change whenOrder-in-Original subsequent to final order of this Tribunal has been passed that Apex Court has decided the issue holding that the activity is covered under GTA. To our opinion, these findings are not sustainable as the classification was not the subject matter of the impugned show cause notice. As far as the presen....