News Flash
  • Details of the JHT 2017 Candidates who have not joined the Department - Click here
  • Result of Examination of GST Practitioners held on 31.10.2018 Click here
  • GST HINDI LEXICON IS AVAILABLE NOW.
  • Diversion of the posts of Chief Commissioners on promotion of Pr. Comm./Pr. ADG Click here
  • OM dated 12.12.2018 regarding AISL of Administrative Officers (Cx & Dte.) for the period upto 2008 Click here
  • Promotion/Posting/Transfer order of Group 'A' officers of CRCL Click here
  • Removal of difficulty order regarding extension of due date for filing of Annual return (in FORMs GSTR-9, GSTR-9A and GSTR-9C) for FY 2017-18 till 31st March, 2019 issued. -Click here -Click here
  • Draft integrated All India Seniority List of Superintendents of Customs (Prev.) for the period from 01.01.2012 to 31.12.2013 Click here
  • Chairman CBIC's weekly newsletter dated 07.12.2018 Click here
  • Due date for filing of Annual return for FY 2017-18 in FORMs GSTR-9, GSTR-9A and GSTR-9C extended to 31st March, 2019. Click here
  • Marks obtained in the Departmental Examination for promotion of LDC/Havaldar to the cadre of Tax Assistant for the year 2018-19, held on 20.07.2018 Click here
  • Revised All Industry Rates(AIRs) of Duty Drawback notified. For details refer to notification no. 95/2018-Cus. (N.T.) dated 6.12.2018. Click here
  • Diversion of the posts of Pr CC of CBIC on their promotion Click here
  • Letter from the office of DGHRD to all the CCAs regarding "Revised Online DPC Module" for Group 'B' and 'C Click here
  • Scheme for Prime Minister's Awards for Excellence in Public Administration - reg.Click here
  • Kind attention Pr. CC/CC/Pr. DG/DG/JS/Commissioner of CBIC is invited to DG Systems letter F. No. IV (20)/21 /2018-Systems dated 04.12.2018 regarding Business Requirement Gathering for Project ADVAITClick here
  • For GSTP Examination on 17.12.2018, candidates enrolled up-to 4.12.2018 (11.59.59 PM) will be eligible to register, instead of 26.11.2018, notified earlier English | Hindi
  • Updated version of GST Concept and Status and PPT on GST - An Update as on 01/12/2018 have been uploaded
  • Final Integrated All India Seniority List of Administrative Officers of (CGST & Dte.) for the period 01.07.2014 to 31.12.2016Click here
  • 21 countries along with WCO, Interpol, UNODC and RILO AP invited to the 5th Regional Customs Enforcement Meeting organized by DRI on 04.12.2018
  • DRI completing 61 Glorious Years. Hon'ble FM to inaugurate the 61st Founding Day function on 04.12.2018
  • GSTPs in the relevant category enrolled on GSTN after 15.11.2018 and till 26.11.2018 are also invited to register on the portal.Click here for English | Hindi
  • Updated FAQs On TCS as on 30/11/2018 issued
  • Notifications issued for extension of due date for filing certain GST returns.
  • Guidelines for Dept. Exam. of Inspectors for confirmation starting from 04.12.2018, issued on 29.11.2018. (Download by using user-id & password at www.nacenkanpur.gov.in)
  • Proposals are invited from eligible Bidders to be appointed as Program Governance and Monitoring Agency (PG&MA) for CBIC’s IT Initiatives. The RFP document can be purchased from the office of DG Systems and Data Management by Respondents who successfully qualified CBIC's EOI dated 26.03.2018 for this project. Click here
  • Postponement of Train the Trainer Workshop for Master Trainers on Combating illegal trade in HCFCs to be conducted from 03rd to 05th December, 2018 at Gangtok, Sikkim Click here
  • Details of Prospective Trainings by NACIN and its ZTIs & RTIs in December, 2018 Click here
  • One-day training programme on "Chemical Weapons Convention" for Group 'A' Officers of CBIC scheduled to be held on 30th November, 2018 at NACIN, Faridabad- Click here
  • Departmental Examination for promotion of Ministerial Officers to be held from 13.02.2019 to 15.02.2019. - Click here
  • Guidelines for GST Practitioner Exam under Rule 83A(9) issued by NACIN, Faridabad - Click here
  • GSTP Examination rescheduled to 17th December 2018 in view of assembly elections on 7th December, 2018 - Click here - Click here
  • Scheme for grant of Cash Awards to meritorious children of Departmental officers/ staff for their performance in the 10th/12th standard Board Examinations held in March/April, 2016, 2017 and 2018-Click here
  • Weekly newsletter from Chairman, CBIC dated 16/11/2018Click here
  • RESULT OF EXAMINATION OF GST PRACTITIONERS HELD ON 31.10.2018 - Click here
  • Call for nominations for workshop for South Asian Sub-regional Economic Co-operation (SASEC) Customs Administration on Trade Facilitation Measures for Time Release Study from 26-27 November, 2018 - Click here
  • Corrigendum of RFP Dated 10.10.2018 for orgainizing International Attachment on Public Policy and Leadership for the 69th Batch of IRS (C&CE) Officer Trainees - Click here
  • Corrigendum to Notification 60/2018-Central Taxes dated 30.10.2018 issued
  • Calling of nomination for the Train the Trainer Workshop for Master Trainers on combating illegal trade in HCFCs being conducted by NACIN from 03-05 Dec, 2018 at Gangtok, Sikkim - Click here
  • Feedback and Action Room to facilitate GST Helpdesk set-up by CBIC for MSMEs - Click here
  • Departmental Examination for IRS (C&CE) Group "A" Officer Trainees to be held from 26th November to 01st December, 2018 in respect of 69th and 68th batch - Click here
  • Updated versions of 3 publications on MSME namely MSME flier, Detailed Booklet and Sectoral Publication are available on the CBIC website-GST> My GST >MSME - Click here
  • Nodal Officers for MSME outreach program Click here
  • Letter from Commissioner (GST) regarding MSMEs outreach program - Click here
  • Swachhta Uday Booklet is available now.Click here
View all

AUTHORITY FOR ADVANCE RULINGS

(CENTRAL EXCISE, CUSTOMS & SERVICE TAX)

NEW DELHI

 

PRESENT

 

Hon'ble Mr.Justice Syed Shah Mohammad Quadri (Chairman)

Order No.AAR/07(ST)/2006

 in

Application No.AAR/44/13(ST)/2006

 

 

Applicant                                                                       M/s Orissa Chrome Export and

                                                                                    Mining Company Limited

                                                                                    A-65/1, Nayapalli

                                                                                    Bhubaneswar-751012

                                                                                    Orissa

                                                                                                                                               

 

Commissioner concerned                                               Commissioner of Central Excise

                                                                                    Bhubaneswar

                                                                                   

 

Present for the Applicant                                                Mr. Biswajit Das, Advocate

                                                                                               

                                                                                   

Present for the Commissioner                                         Mr. A.K. Roy, Joint CDR

concerned                                                                     CESTAT, New Delhi

 

 

O R D E R

 

(Hon'ble Mr. Justice Syed Shah Mohammad Quadri)

 

                       

The applicant M/s Orissa Chrome Export and Mining Company Limited, Bhubaneswar, Orissa filed this application under 96C (1) of the Finance Act, 1994 (for short "Service Tax Act")  seeking an advance ruling of the Authority on the following questions.

"1. Whether the service tax liability can be imposed upon the service availer like us who is engaged in the manufacturing and Exporting and  is availing Services  like transportation of goods through roads from the transport service provider during the course of our trade and commerce of export.

 

2. As we are exclusively involved in the 100% export, whether we are end for exemption / Waiver / tax holiday from the service Tax.

 

3. Is it correct to hold that we are end for the benefits of the provisions of rule 3(1) (iii) of export of Service rules, 2005 as transportation services are provided  to us in relation to our business or commerce and the ultimate recipient of those services are located outside India?

 

4. Is it correct to hold that all the activity, incidental and ancillary, facilitating the export shall also fall within the ambit of export and  enjoy the same benefits as are available to the Export?"

 

2.         The applicant is carrying on the activity of manufacture and export.  In the application against column No . 6, it is stated that the applicant is an existing exporter.  The jurisdictional Commissioner forwarded the comments to the application pointing, inter alia, that the applicant has been issued a show cause notice with reference to the demand of service tax and the matter is pending before Assistant Commissioner/Deputy Commissioner, (Service Tax Adjudication), Bhubaneswar.  In view of the position stated above the Authority issued a notice to the applicant on 28.11.2006 to show case why the application should not be rejected for the ground mentioned therein. The relevant portion of the notice reads thus :-

"2.    The Authority is tentatively of the view that the said application is liable to be rejected on the following two grounds:

(i)       The question on which the applicant has sought an advance ruling relates to an "on going" activity / service as has been admitted in applicant's letter dated 03.10.2006.

 

(ii)     It has been brought to the notice of the Authority by the concerned Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-I Commissionerate, Bhubaneswar   that the issue raised in Question No. 1 of the application is already pending before the Assistant Commissioner / Deputy Commissioner (Service Tax Adjudication), Bhubaneswar.  A copy of the Commissioner's comments alongwith enclosures thereto including Show Cause Notice No. IV(14)20/S.TAX/BBSR-I/2006/9591A  dated 17.05.2002 is enclosed herewith.    

 3.     However, before a final decision is taken by the Authority, you are hereby required to show cause as to why the application should not be rejected on the aforementioned grounds. Written submissions, if any, may be filed  positively within two weeks from the date of the receipt of this notice."

3.         The applicant filed its reply stating in para 4 of the reply that the objects and reasons of advance ruling with respect to a particular provision of the Act and since the relevant provision of the Act have come very recently, the applicant which was in the business has expeditiously approached the Authority to obtain an advance ruling on the subject.  Even now it is in the ongoing activity.   It is stated that the matter which is pending before the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar with respect to an assessment and not with respect to substantial question of law and that the subject matter before the Authority is in relation to a substantial question of law. That the matter before the Authority is different from the matter pending before the Commissioner, Central Excise Bhubaneswar. 

 

4.         Mr. Biswajit Das, Learned Counsel appearing for the applicant submits that  no doubt the activity which is being carried on in respect of which advance is sought, is on going activity but the moment this activity was brought within the ambit of the Service Tax Act,  the applicant has immediately approached the Authority.  Therefore, it cannot be treated as an on going activity for the purposes of the Act.  In reply to a question from the Authority the Learned Counsel submits that after coming into force of the Act this activity was not stopped and still it continues. 

 

5.         To appreciate the contention of the Learned Counsel it is necessary to notice the provision of the Section 96 A(a) which is in the following terms :

 

Section 96A.  Definitions - In this Chapter, unless the context otherwise requires, -

 

(a)   "advance ruling" means the determination, by the Authority, of a question of law or fact specified in the application regarding the liability to pay service tax in relation to a service proposed to be provided, by the applicant;

 

6.         The definition of advance ruling, referred to above, makes it abundantly clear that it is concerned with determine the question of law or fact in relation to service which is proposed to be provided by the applicant.  In as much as in this case the activity in respect of advance ruling is sought, is not the one  which is proposed to be provided but is an ongoing activity, the application is not maintainable.  We have taken the same view in case of M/s McDonald's India Pvt. Ltd., Mumbai - Order No. AAR/44/103/2003 dated 23.02.2004), M/s Om Construction, Jabalpur - Order No. AAR/01(ST)/2005 dated 06.01.2005 and M/s IJM (India) Infrastructure Limited, New Delhi - Order No. AAR/05(ST)/2006 dated 9.11.2006.  

 

7.         In the view I have taken above, it is not necessary to go into the second ground of rejection for the above reasons.

 

8.         The application is rejected.                                                                     

 (Justice S.S.M.Quadri)

Chairman

Dated : 14th December, 2006