Allowed

M/S Amitkumar Ajaykumar and Brothers v. the Commissioner of Central Excise, Thane - II

Bombay HC2 Aug 2013CEXA/97/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Tribunal order requiring predeposit of duty and penalty. The Court observed the appellant is prima facie covered by a retrospective exemption notification and granted complete waiver of predeposit and a stay on recovery proceedings pending the final appeal.

What did the court decide?

Complete waiver of predeposit of duty and penalty, and stay of recovery proceedings referred to in the order.

M/S Amitkumar Ajaykumar and Brothers Vs the… — Service and Employment | Bombay HC (2013)

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CEXA-97-13

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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CENTRAL EXCISE APPEAL NO.97 OF 2013

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M/s.Amitkumar Ajaykumar & Brothers

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..Appellants

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Vs.

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The Commissioner of Central Excise, Thane1.

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..Respondents

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Mr. Prakash Shah i/b. PDS Legal for the appellants. Mr.Pradeep S. Jetly for respondent in Appeal No.97 of 2013.

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CORAM: MOHIT S. SHAH, C.J. & M.S.SANKLECHA, J. DATE : 2 AUGUST 2013

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P.C.:

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This appeal is directed against the order dated 15 May 2013 of the Customs, Excise & Service Tax Appellate Tribunal, West Zone Bench, Mumbai (Tribunal) on the appellant's application for dispensing with predeposit of duty and penalty for the purpose of hearing its appeal from the order dated 16 November 2009. By the adjudication order dated 16 November 2009, the appellant was held liable to service tax as Tour Operator for the period 1 October 2001 to 30 September 2006.

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CEXA-97-13

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By the impugned order the Tribunal has granted waiver of predeposit of the balance of duty & penalty on the condition that the appellant remits Rs.13,50,000/- to the credit of the Revenue. This was on the ground that for normal period of limitation the appellant is covered by the definition of `Tour Operator'.

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Having heard learned counsel for the appellant and learned counsel for the revenue, we are of the view that the appellant is prima facie covered by the exemption notification No.20/2009 S.T. dated 7 July 2009, which has been given retrospective effect from 1 April 2000 by section 77 of the Finance Act, 2011. We also note the order of the Tribunal in Sharma Transports v/s. Commissioner of Service Tax, Bangalore reported in 2013 (29) S.T.R. 249, where at the final hearing of the appeal the demand of service tax on Tour Operators was held to be not sustainable as it was covered by aforesaid notification No.20/2009 S.T. Dated 7 July 2009 which was applied retrospectively with effect from 1 April 2000. In view of the above this is a fit case for grant of complete waiver of predeposit of duty and penalty for the purpose of hearing the appellant's appeal on merits and also to stay recovery proceedings pursuant to the adjudication order dated 16 November 2009.

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It is clarified that the observations made in this order are for limited purpose of deciding the stay application during the pendency of the appeal before the Tribunal. The Tribunal shall decide the controversy between the parties at the final hearing, without being influenced by this order and without insisting for predeposit.

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Appeal is, accordingly, allowed in the aforesaid terms with no order as to costs.

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CHIEF JUSTICE

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(M.S.SANKLECHA, J.)

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M/S Amitkumar Ajaykumar and Brothers v. the Commissioner of Central Excise, Thane - II

Case brief

What is this about?

What did the court decide?

M/S Amitkumar Ajaykumar and Brothers v. the Commissioner of Central Excise, Thane - II

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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