Decided on February 19,2015



R.K. Singh, Member (T) - (1.)REVENUE has filed this appeal against Order -in -Appeal No. 7 -ST/Alld/2009 dated 18.2.2009 which allowed the respondents the benefit of Notification No. which was initially disallowed vide order -in -original dated 31.3.2008 on the grounds that (i) the assessee had not been able to establish that the conditions of the notification were satisfied to the effect that the transporter had neither taken Cenvat credit on input or capital goods used for providing taxable services under the Cenvat Credit Rules, 2004 nor availed of the benefit of Notification No. dated 20.6.2003 and (ii) the consignment notes issued by the GTA did not contain a declaration by the service provider to the effect that the conditions of exemption Notification No. dated 3.12.2004 have been satisfied as required in terms of the guidelines issued by CBEC Circular No. BI/6/2005 -TRU dated 27.7.2005. Essentially these are the grounds which the Revenue has also taken in their appeal.
(2.)WE have considered the Revenue s submissions. It is seen that that the period involved in the present case is from January 2005 to July 2005. The CBEC circular dated 27.7.2005 which has been heavily relied upon by the primary adjudicating authority, as well as Revenue in their appeal was issued on 27.7.2005 which is almost at the end of the period involved in the present case. Further, it is seen that the condition of notification No. is that the said exemption shall not apply in such cases where credit of duty paid on inputs or capital goods used for providing such taxable service has been taken under the provisions of Cenvat Credit Rules 2004 or the Goods Transport Agency has availed of the benefit under the notification of the Government of India No. 12/2003 -ST. There is no evidence that any such credit or the benefit of 12/2003 -ST had been availed. Further we find that the Commissioner (Appeals) has observed as under:
Appellant has fulfilled the conditions of said notification. In the instant case the appellant has submitted photo copies of the so -called declaration purportedly by the transporters on their letter heads on behalf of the concerned transport agency, for claiming the benefit of abatement. They have also submitted photo copies of few Consignment/Notes/Bilties containing required declaration. In these premises, I set aside the impugned order of the Additional Commissioner, Central Excise, Allahabad and allow the instant appeal filed by M/s Sangam Structural Ltd. (Tower Division), B -10, U.P.S.I.D.C, Industrial Area, Naini, Allahabad.
It is also seen that in the case of CCE, Rajkot Vs. Advance Diesel Engineering (P) Ltd. : 2008 (10) STR 201 (Tri. -Ahmd.), the Tribunal held as under:
The benefit of Notification No. was available subject to production of a declaration from the transporter that they have not availed the Cenvat credit on input/capital goods at their end. The respondents, at the time of taking credit, have not produced the declarations from their transporters. However, when the matter was before the Commissioner (Appeals), the respondents produced the declarations. Taking note of this development, the Commissioner (Appeals) has allowed the benefit of Notification No. . The condition of the notification has been fulfilled substantially though belatedly. No valid grounds have been adduced to interfere with the findings and reasoning adopted by the Commissioner (Appeals).

(3.)WE also note in passing that the conditions prescribed by the CBEC circular dated 27.7.2005 seem to go beyond the requirement of the exemption notification. It is settled law that CBEC circulars cannot restrict or expand the amplitude of an exemption notification nor can they add/subtract conditionalities thereto/there from. However, this point is not being laboured here as the decision in the case is not predicated thereon.

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