AMBUR CO-OP SUGAR MILLS LTD , REP BY ITS MANAGING DIRECTOR J HEMA SALOMI Vs. ADDITIONAL COMMISSIONER OF CENTRAL EXCISE, CHENNAI

JUDGEMENT

(1.) Heard Mr.Hari Radhakrishnan, learned counsel for the petitioner and Mr.A.P.Srinivas, learned Senior Panel Counsel for the respondent.

(2.) In the light of the limited issue involved in this writ petition, the same is taken up for disposal at this stage.

(3.) The petitioner is a Co-operative Sugar Mill and aggrieved by an order passed by the Additional Commissioner of Central Excise, Chennai III, Commissionerate dated 07.04.2016, by which the premium earned by the petitioner on account of transfer of export quota to other sugar mills has been treated as a service to fall within the ambit of 'Business Auxiliary Service' and service tax has been demanded from the petitioner apart from demanding interest and imposing penalty. The petitioner has raised a contention that the nature of transaction done by the petitioner is sale and by treating this transaction as sale of goods, the petitioner has remitted Value Added Tax by filing returns before the concerned commercial tax officer. Therefore, it is submitted that the sale cannot be treated as a service to fall under the category of 'Business Auxiliary Service'. Further it is submitted that the extended period of limitation cannot be invoked, as there is no specific plea raised by the parties to show that there has been suppression and in paragraph 22 of the impugned order, there is no specific finding as to what is the suppression which has been made by the petitioner. To sustain the contention that notice issued by the respondent does not allege any willful misstatement or suppression, the petitioner placed reliance on the decision of the Hon'ble Supreme Court in Uniworth Textiles Ltd., Vs. CCE, Raipur, 2013 288 ELT 161 (SC). It is further submitted that the petitioner mill is under the control of Tamil Nadu Co-operative Sugar Federation Limited and the Managing Director is appointed by the Government of Tamil Nadu and therefore, there can be no intention to evade duty and the larger period could not have been invoked. Reliance has also been placed on the decision of the Hon'ble Supreme Court in Tamil Nadu Housing Board Vs. Collector of Central Excise, Madras, 1994 74 ELT 9 (SC).