M/S. KALPENA INDUSTRIES LTD. Vs. CST VAPI

JUDGEMENT

(1.) THIS appeal is directed against order -in -appeal No. SA/156/VAPI/2011, dt. 05.10.11. The facts of the case in brief are that during the course of audit, it was noticed that the appellant had paid service tax claiming abatement of 75% from gross amount of the bills raised by the Goods Transport Operators during the period May 2005 and June 2005, by availing option under Notification No. -ST dated 03.12.2004. CBEC vide letter F. No. B1/6/2005 -TRU dated 27.07.2005 clarified that a declaration by the GTA on the consignment notes issued to the effect that neither credit on inputs or capital goods used for providing said taxable service has been taken nor the benefit of Notification No. 12/2003 -Service Tax has been taken by them, will suffice for the purpose of availment of abatement by the person liable to pay Service Tax. The department was of the view that in the instant case, the appellant had not produced the consignment notes duly endorsed by the Goods Transport Agency as above and hence was not entitled for the abatement. Therefore, a show cause notice dated 01.04.2010 was issued and the same was adjudicated, vide the impugned order wherein the adjudicating authority confirmed the Service Tax demand of Rs. 19,682/ - along with interest and imposed equal penalty.

(2.) AGGRIEVED by such an order, appellant preferred an appeal before the first appellate authority. The first appellate authority after perusal of the records and considering the submissions made by the appellant before her, came to a conclusion that the order -in -original is correct and does not suffer from any infirmity and coming to such a conclusion, the appeal was rejected.

(3.) LD . Assistant Commissioner (A.R.) on the other hand would submit that the general declaration given by the Roadways is only stating that the Roadways have not availed the cenvat credit of capital goods of inputs. It is his submission that the said goods transport agency service provider has not given any certificate regarding non utilisation or availing the benefit of the Notification No. 12/03 -ST is the finding of the appellate authority, it is in the absence of such certificate, credit has been correctly availed. It is his submission that Hon'ble Apex Court in the case of Hari Chand Shri Gopal - : 2010 (260) ELT 3 (S.C.), has held that the conditions of notification should be construed strictly.