Bombay High Court
Commissioner Of Customs, Central ... vs M/S. Pratibha Electrical Engineers, ... on 25 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1933-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CENTRAL EXCISE APPEAL NO.5 OF 2023
Commissioner of Customs, Central Excise
and Service Tax, Aurangabad,
N-5, Town Centre, CIDCO,
Aurangabad - 431 003.
... Appellant
... Versus ...
M/s. Shyam Electrical Stores,
Station Road, Parli (Vaijnath),
Dist. Beed.
... Respondent
...
Mr. D.S. Ladda, Advocate for appellant
Mr. Alok Sharma, Advocate for sole respondent
...
WITH
CENTRAL EXCISE APPEAL NO.4 OF 2023
Commissioner of Customs, Central Excise
and Service Tax, Aurangabad,
N-5, Town Centre, CIDCO,
Aurangabad - 431 003.
... Appellant
... Versus ...
M/s. Pratibha Electrical Engineers,
7, Mondha Road, Ambajogai,
Dist. Beed.
... Respondent
2 CEA_5_2023+1_Jd
...
Mr. D.S. Ladda, Advocate for appellant
Mr. Alok Sharma, Advocate for sole respondent
...
CORAM : SMT. VIBHA KANKANWADI &
S.G. CHAPALGAONKAR, JJ.
DATE : 25th JANUARY, 2024
JUDGMENT :
(PER : SMT. VIBHA KANKANWADI, J.)
1 Central Excise Appeal No.5 of 2023 has been filed by the
Department aggrieved by the Judgment and order dated 23.07.2020 passed
by Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at
Mumbai in CESTAT Appeal No.ST/87239/2015 vide CESTAT Final Order
No.A/85805-85814/2020 and Order dated 09.06.2015 passed by the
Commissioner (Appeals) Central Excise, Customs and Service Tax,
Aurangabad vide Order No.21/ST/COMMR/2015; and Central Excise Appeal
No.4 of 2023 has been filed by the Department aggrieved by the Judgment
and order dated 23.07.2020 passed by Customs, Excise and Service Tax
Appellate Tribunal, West Zonal Bench at Mumbai in CESTAT Appeal
No.ST/87238/2015 vide CESTAT Final Order No.A/85805-85814/2020 and
Order dated 09.06.2015 passed by the Commissioner (Appeals) Central
Excise, Customs and Service Tax, Aurangabad vide Order
3 CEA_5_2023+1_Jd
No.20/ST/COMMR/2015.
2 The respondent is engaged in providing erection, commissioning
and installation services to M/s. M.S.E.D.C.L. and the assessee had filed VCES
Declaration on 26.12.2013 in VCES-1 in terms of Section 107(1) of the
Service Tax Voluntary Compliance Encourage Scheme, 2013 for availing
benefits under the said scheme for the period between October, 2007 to
December, 2012. The tax dues were declared at Rs.49,05,633/- and
Rs.88,35,008/- respectively. According to the assessee, the service tax
liability under VCES was substantially false and, therefore, show cause
notices came to be issued on 15.12.2014 and 10.12.2014 respectively and
demand of service tax of Rs.1,49,72,282/- and Rs.2,65,45,515/- respectively
came to be issued. Those show cause notices were challenged by the
respondents by filing Original No.21/ST/COMMR/2015 dated 09.06.2015
and Original No.20/ST/COMMR/2015 dated 09.06.2015 respectively.
However, adjudicating authority held that the VCES Declaration filed by the
respondent assessee is true and correct. The notices were directed to be
withdrawn. The appellants had then preferred the appeals before the
Appellate Tribunal. The Appellate Tribunal has also dismissed the appeals
and upheld the declaration by the assessee. Hence, the present appeals.
4 CEA_5_2023+1_Jd
3 It appears that some point in respect of maintainability came to
be raised by the respondents themselves, however, the said issue has been
settled in Asean Cableship Private Limited vs. Commissioner of Customs
[2022 SCC OnLine SC 1640]. The question that was considered in the
Special Leave Petition by the Hon'ble Supreme Court was - Whether against
the order passed by the CESTAT impugned before the High Court the appeal
would be maintainable before the High Court under Section 130(1) of the
Act or the appeal before Hon'ble Supreme Court would be maintainable
under Section 130E(b) of the Act ? It was just held that the said appeal was
maintainable. In Three Judge Bench decision of the Hon'ble Supreme Court
in Commissioner of Customs, Bangalore-1 vs. Motorola India Limited [(2019)
9 SCC 563] also the said ratio has been laid down. It appears that the
department has filed appeal under Section 35G of Central Excise Tax Act.
Before the Full Bench of this Court in Commissioner of Central Excise
Mumbai vs. M/s. Reliance Media Works Limited (formerly known as M/s.
Adlabs Film Limited), Mumbai [(2020) 2 AIR BomR 520] the points for
reference were as under :
"a) Whether the question of taxability or excisability of goods is an
issue of rate of duty arising from orders of the Tribunal which are
appealable only to the Supreme Court in terms of Section 35L(2) of
the Act applies even to appeals from order of the Tribunal passed
5 CEA_5_2023+1_Jd
prior to 6th August, 2014 (i.e. the date of insertion of sub-section (2)
to Section 35L of the Act) ?
b) Whether the amendment made to Section 35L of the Act on 6 th
August, 2014 by insertion of sub-section (2) therein, is clarificatory or
prospective in nature ?"
While answering to the points for reference, the Full Bench in
paragraph No.9 has held as under :
"9. In view of our above discussion, we now answer the questions
posed in the reference for our opinion as under :
Regarding question (a) - Appeals from orders of the Tribunal relating
to taxability or excisability passed prior to 6 th August, 2014 i.e. the
date of insertion of sub-section (2) to Section 35L of the Act being a
rate of duty issue would be appealable only to the Hon'ble Supreme
Court and not the High Court.
Regarding question (b) - The amendment made to Section 35L of the
Act is clarificatory in nature and, therefore, retrospective in
operation."
Here, in the present case, the show cause notices were issued on
the ground that under the voluntary scheme the declaration is not properly
given. In fact, both the Courts below were against the department. In view
of the fact that there were certain Government Resolutions, on the basis of
which it was held that the respondent was not liable to pay the tax amount,
but it was exempted. As regards to whatever period the respondent was held
6 CEA_5_2023+1_Jd
liable to pay in respect of the said calculation he has already deposited the
said amount. Therefore, it was the interpretation of the contents in the
scheme and also whether the exemption has been rightly claimed or not.
Therefore, the subject is squarely covered in the ratio laid down in Motorola
India Limited (supra). Whether the assessee had violated the conditions of
the exemption Notification and, therefore, was libale to pay the duty, interest
and penalty was involved and, therefore, it is held that the appeal qua
violated of conditions of exemption Notification by assessee is maintainable
before High Court.
4 Now, turning towards the fact of the case, unless it is shown that
the present appeals involved substantial question of law, no question of
granting any relief or even admitting the appeals arises. The learned
Advocate for the respondent has placed on record copy of certain resolutions
in respect of exemption to services provided for transmission of electricity. By
Notification dated 27.02.2010 the taxable service provided to any person, by
any other person for transmission of electricity, from the whole of service tax
levy was exempted from 27.02.2010. Even the person was also held
exempted from taxable service provided for the distribution of electricity and
it was with effect from 22.06.2010. Further, by Notification dated
20.07.2010 retrospective exemption for transmission till 26.02.2010 and
7 CEA_5_2023+1_Jd
distribution of electricity till 21.06.2010 was granted. However, by
Notification dated 20.06.2012 the Central Government rescinded the
Notifications dated 27.02.2010 and 22.06.2010. It appears that in both the
matters the service tax liability was shown in the notices as Rs.1,49,72,282/-
and Rs.2,65,45,515/- respectively. Both the authorities below have then
taken note of various Notifications issued by the Government and held that
the demand of service tax under VCES, 2013 pertaining to period from
01.10.2007 to 30.06.2012 is not sustainable. Rather it was found that the
respondent has paid more amount than liable, but in view of Section 109 of
the Finance Act, 2013 detailing provisions of VCES, 2013 stipulated that "Any
amount paid in pursuance of a declaration made under sub-section (1) of
Section 107 shall not be refundable under any circumstances."; the petitioner
is not entitled to get back the excess amount. The wordings of the exemption
granted under the Notification is certainly binding on the appellant
department and, therefore, the competent authority below were justified in
withdrawing the show cause notices. There is absolutely no merit in the
appeals. Accordingly, both the appeals stand dismissed at the threshold, as
there is no substantial question of law raised.
(S.G. CHAPALGAONKAR, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
