2013-TIOL-1261-CESTAT-MUM Laxmi Tyres vs. Commissioner of Central Excise, Pune

Facts:
The Appellant was engaged in retreading of tyres and thus claimed the benefit of Notification No.12/2003-ST dated 20-06-2003 by deducting approximately 70% as material cost on which sales tax/VAT was paid and service tax was paid only on 30% of the remaining value.

Relying on Aggarwal Colour Advance Photo System 2011-TIOL-1208-CESTAT-DEL-LB which stated that the term ‘sold’ appearing in the said notification was to be interpreted using the definition of ‘sale’ in the Central Excise Act, 1944 and not as per the meaning of deemed sale under Article 366 (29A) (b) of the Constitution the department contented that tax was payable on the entire amount.

The appellant relied on the cases of Chakiti Ranjini Udyam 2009 (16) STR 172 (Tri-Bang) and PLA Tyre Works 2009 (14) STR 32 (Tri-Chennai) in support of its contentions.

Held:
Perusing the sample invoice issued by the appellant and relying on the larger Bench’s decision in Aggarwal Colour Advance Photo System (supra), the Hon. Tribunal disposed the appeal and held that the appellant was not eligible for the benefit of Notification No. 12/2003-ST and liable to discharge service tax liability on the gross amount charged for the said transaction.

(Note: Further, an application for Rectification of Mistake was filed by the appellant to consider the aspect of time bar not considered at the time of hearing of appeal which was dismissed by the Hon. Tribunal as the same would tantamount to ‘review’ of own order which is not permissible under law-2013-TIOL-1345-CESTAT-MUM).