GMMCO LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appeal and stay application arise from Order -in -Original No. 11/ST/2011 -12/C, dated 22 -9 -2011 passed by the Commissioner of Central Excise, Nagpur. The said order was challenged by the appellant, M/s. GMMCO Ltd., Nagpur, before the Hon'ble High Court of Bombay, Nagpur Bench in WP No. 5410 of 2011 and the Hon'ble High Court vide order dated 10 -9 -2012 dismissed the writ petition and directed the appellant to avail the appellate remedy provided for in the law within a period of one month. Accordingly the appellant has filed the present appeal within the time stipulated in the said order of the Hon'ble High Court. The appellant is inter alia engaged in renting of earthmoving equipment, such as Caterpillar, Excavators, etc. to various customers. The appellant did not discharge any service tax liability on the said activity. The department was of the view that the activity of renting of earthmoving equipment would come under the purview of service tax under the taxable service category of "business auxiliary service" for the period prior to 16 -5 -2008 and under the category of "supply of tangible goods for use" with effect from 16 -5 -2008 and accordingly issued a notice dated 23/25 -8 -2010 demanding service tax amounting to Rs. 2,13,10,930/ - for the period 2005 -06 to 2009 -10 along with interest thereon under the provisions of Section 73 read with Section 75 of the Finance Act, 1994. The notice also proposed to impose penalties on the appellant for the default in payment of service tax, failure to obtain registration and comply with the service tax procedures and alleging suppression of facts on the part of the appellant with an intent to evade payment of service tax under Sections 76, 77 and 78 of the said Finance Act. The demand was contested and vide the impugned order, the ld. Commissioner confirmed the demand of service tax under the category of "supply of tangible goods for use" for the period from 16 -5 -2008 amounting to Rs. 67,39,694/ - along with interest thereon and also imposed penalties on the appellant under Section 77, Rule 7C of the Service Tax Rules, 1994 and Section 78 of the said Finance Act. Hence the appellant is before us.

(2.) THE ld. Counsel for the appellant makes the following submissions: -

(3.) WE have carefully considered the submissions made by both sides.