Full Judgment Text
2022:BHC-OS:7471-DB
905 CEXA.17.2021 OS.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 17 OF 2021
The Commissioner of CGST &
Central Excise, Mumbai (West) } .. Appellant
Versus
M/s. Patel Integrated Logistics, Ltd. } .. Respondent
Mr. Ram Ochani, Advocate for the Appellant.
Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b PDS Legal,
Advocate for the Respondent.
CORAM : DHIRAJ SINGH THAKUR AND
VALMIKI SA MENEZES JJ.
th
RESERVED ON : 15 SEPTEMBER, 2022
st
PRONOUNCED ON : 21 SEPTEMBER, 2022
(PER DHIRAJ SINGH THAKUR, J.)
. The present appeal has been preferred under Section 35G
of the Central Excise Act, 1944 (for short “the Act”) against
the order of Customs, Excise & Service Tax Appellate Tribunal,
th
West Zonal Bench, Mumbai (CESTAT) dated 09 September,
2019.
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2. The questions which have been proposed for our
consideration are as under:
(I) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in
deciding that the Cenvat credit shall not be denied
on the grounds that any of the documents
mentioned in sub-rule (1) does not contain all the
particulars required to be contained therein under
these rules?
(ii) Whether in the facts and circumstances of the
case and in law the CESTAT was correct that
overlook the mandatory provisions of sub-rule (1)
of Rule 9 of the CCR, 2004?
(iii) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in not
appreciating that the service tax paid by airlines
at all and that the recipient of the service is the
shipper of the goods/documents and not the
appellant?
(iv) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in not
appreciating that the Appellant is Agent?
3. Briefly stated the material facts are as under:
Two show cause-cum-demand notices came to be
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issued against the Respondent, in which it was alleged that
Cenvat Credit had been ‘irregularly’ availed on improper
document i.e. on the basis of Cargo Sales Report (CSR), which
was a summary of the Air Way Bills, which it was stated was
not in conformity with Rule 9(1) of the Cenvat Credit Rules,
2004., with a view to discharge their service tax liability in
respect of the taxable services provided during the period from
2009-10 to 2012-13. The matter was adjudicated upon by the
adjudicating authority.
th
The adjudicating authority vide its order dated 16 July,
2015 held in favour of the Respondent and dropped both the
show cause notices by holding that the Air Way Bills could be
considered as an invoice/bill or Challan, as per Rule 4A of the
Service Tax Rules, 1994. It was thus held that the assessee
Respondent had rightly taken the Cenvat Credit, as per
provisions of Rule 9(1) of the Cenvat Credit Rules, 2004.
4. A perusal of the order passed by the adjudicating
authority, would show that after perusal of the copies of the
Air Way Bills, the following ingredients were found to be
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contained therein, which were otherwise required to be
contained in the invoice/bill or Challan:
. Invoice no {a Unique Air Way Bill}
. Service Tax Registration no (of the air line)
. Name of the service provider (i.e. airline)
. Name of the service receiver (the assessee)
. Value of service
. Nature of service
. Service Tax amount
5. The said order was challenged before the Tribunal, in
which contrary to the grounds alleged in the show cause-cum-
demand notice, the revenue questioned the order of the
adjudicating authority on the ground that the activity of the
assessee was not an ‘output service’, within the meaning of
Rule 2 of the Cenvat Credit Rules, 2004. The Tribunal,
however, dismissed the appeal on the ground that the ground
on which the appeal is sought to be fled, was beyond the scope
of adjudication of the show cause-cum-demand notice.
6. Learned Counsel for the Appellant has not been able to
convince us that the view expressed by the Tribunal was in
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any manner perverse. It is trite law that the show cause notice
is the foundation in the matter of levy and recovery of duty
penalty and interest and since the grounds on which the
appeal was preferred before the Tribunal did not fnd any basis
in the show cause-cum-demand notice, the appeal on that basis
could not have been entertained or allowed.
7. Be that as it may, we do not fnd any reason to interfere
with the order of the Tribunal. The central excise appeal is,
accordingly, dismissed.
(VALMIKI SA MENEZES, J.) (DHIRAJ SINGH THAKUR, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 17 OF 2021
The Commissioner of CGST &
Central Excise, Mumbai (West) } .. Appellant
Versus
M/s. Patel Integrated Logistics, Ltd. } .. Respondent
Mr. Ram Ochani, Advocate for the Appellant.
Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b PDS Legal,
Advocate for the Respondent.
CORAM : DHIRAJ SINGH THAKUR AND
VALMIKI SA MENEZES JJ.
th
RESERVED ON : 15 SEPTEMBER, 2022
st
PRONOUNCED ON : 21 SEPTEMBER, 2022
(PER DHIRAJ SINGH THAKUR, J.)
. The present appeal has been preferred under Section 35G
of the Central Excise Act, 1944 (for short “the Act”) against
the order of Customs, Excise & Service Tax Appellate Tribunal,
th
West Zonal Bench, Mumbai (CESTAT) dated 09 September,
2019.
R.V. Patil 1 of 5
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905 CEXA.17.2021 OS.doc
2. The questions which have been proposed for our
consideration are as under:
(I) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in
deciding that the Cenvat credit shall not be denied
on the grounds that any of the documents
mentioned in sub-rule (1) does not contain all the
particulars required to be contained therein under
these rules?
(ii) Whether in the facts and circumstances of the
case and in law the CESTAT was correct that
overlook the mandatory provisions of sub-rule (1)
of Rule 9 of the CCR, 2004?
(iii) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in not
appreciating that the service tax paid by airlines
at all and that the recipient of the service is the
shipper of the goods/documents and not the
appellant?
(iv) Whether in the facts and circumstances of the
case and in law the CESTAT was correct in not
appreciating that the Appellant is Agent?
3. Briefly stated the material facts are as under:
Two show cause-cum-demand notices came to be
R.V. Patil 2 of 5
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issued against the Respondent, in which it was alleged that
Cenvat Credit had been ‘irregularly’ availed on improper
document i.e. on the basis of Cargo Sales Report (CSR), which
was a summary of the Air Way Bills, which it was stated was
not in conformity with Rule 9(1) of the Cenvat Credit Rules,
2004., with a view to discharge their service tax liability in
respect of the taxable services provided during the period from
2009-10 to 2012-13. The matter was adjudicated upon by the
adjudicating authority.
th
The adjudicating authority vide its order dated 16 July,
2015 held in favour of the Respondent and dropped both the
show cause notices by holding that the Air Way Bills could be
considered as an invoice/bill or Challan, as per Rule 4A of the
Service Tax Rules, 1994. It was thus held that the assessee
Respondent had rightly taken the Cenvat Credit, as per
provisions of Rule 9(1) of the Cenvat Credit Rules, 2004.
4. A perusal of the order passed by the adjudicating
authority, would show that after perusal of the copies of the
Air Way Bills, the following ingredients were found to be
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contained therein, which were otherwise required to be
contained in the invoice/bill or Challan:
. Invoice no {a Unique Air Way Bill}
. Service Tax Registration no (of the air line)
. Name of the service provider (i.e. airline)
. Name of the service receiver (the assessee)
. Value of service
. Nature of service
. Service Tax amount
5. The said order was challenged before the Tribunal, in
which contrary to the grounds alleged in the show cause-cum-
demand notice, the revenue questioned the order of the
adjudicating authority on the ground that the activity of the
assessee was not an ‘output service’, within the meaning of
Rule 2 of the Cenvat Credit Rules, 2004. The Tribunal,
however, dismissed the appeal on the ground that the ground
on which the appeal is sought to be fled, was beyond the scope
of adjudication of the show cause-cum-demand notice.
6. Learned Counsel for the Appellant has not been able to
convince us that the view expressed by the Tribunal was in
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any manner perverse. It is trite law that the show cause notice
is the foundation in the matter of levy and recovery of duty
penalty and interest and since the grounds on which the
appeal was preferred before the Tribunal did not fnd any basis
in the show cause-cum-demand notice, the appeal on that basis
could not have been entertained or allowed.
7. Be that as it may, we do not fnd any reason to interfere
with the order of the Tribunal. The central excise appeal is,
accordingly, dismissed.
(VALMIKI SA MENEZES, J.) (DHIRAJ SINGH THAKUR, J.)
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