Whether truck load of sand received for which amount charged is Rs. 1500/- be eligible for exemption?

PJ/Case Laws/2012-13/1362

Case:- M/s GONDAL PRESTRESSED CONCRETE V/s COMMISSIONER OF CENTRAL EXCISE, RAJKOT

Citation:- 2012-TIOL-1859-CESTAT-AHM

Brief Facts:- The issue involved in this case is regarding Goods Transport Agency service which has been availed by the appellant for transportation of sand to their premises by truck owners. It is the submission that the individual transporters who charges for a truck load of sand transported to their premises, can be considered, for the benefit of Notification No. 34/2004-ST dated 03.12.2004. In the assessee's own case for the subsequent period, the same authority has allowed the benefit of the notification.

Appellant’s Contention:- Learned Chartered Accountant for Appellant submits that in respect of the very same assessee, for the subsequent period, lower authority i.e. the very same first appellate authority has held that the appellant is eligible for the benefit of Notification No. 34/2004-ST while in this case, the same very appellate authority has denied the benefit of the notification.

Reasoning Of Judgement:- On perusal of the record and perusal of order in appeal No. 371/2012/Commr(A)/RBT/RAJ dated 21.06.2012, we find that the submission of the appellant is correct that appellant has been allowed the benefit of said notification for the subsequent period. We also find that it is the same Commissioner (Appeals), who has passed an order which is in appeal before us in this case, and both the orders are diagonally opposite. We also find strong force in the contentions raised by the learned Chartered Accountant that in respect of an identical issue, in the case of Essel Mining & Industries Limited [2010 (17)STR 406 (Tri. Kolkata)]= (2009-TIOL-1473-CESTAT-KOL),the coordinate bench of the Tribunal has granted an unconditional stay where the gross amount charged by the service provider is Rs. 1500/- or less. We find that appellant has made out a case of the waiver of pre-deposit of amounts involved. Accordingly, the application for the waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal.

Decision: The stay application was allowed.

Comment:- This case indicates that the appellate authority cannot take a different stand than that already decided by it in case of same assessee for a different period.

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PJ/Case Laws/2012-13/1362

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