IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.761 of 2010 Commissioner Of Central Excise, Patna ….Appellant Versus M/S Bharat Sugar Mills, Sidhwa …..Respondent. with M.A No.502 of 2010 Commissioner Of Central Excise, Patna ….Appellant. Versus M/S Bharat Sugar Mills, Sidhwa …….Respondent. ============================================ APPEARANCE For the Appellant : Mrs. Archana Minakshee, Advocate Mrs. Archana Sinha, Advocate For the Respondent : Mr. Ashish Giri, Advocate Mr. Vikas Ratan Bharti, Advocate =================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT (13/01/2011) (Per: HONOURABLE THE CHIEF JUSTICE) The matters at issue in both the Appeals are identical. In Miscellaneous Appeal No.761 of 2010 the appellant Commissioner of Central Excise, Patna has challenged the judgment and order dated 5th August 2009 passed by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as ”the Tribunal”) in Appeal No. S.T. Appl. 59 of 2008. The matter at issue was whether the respondent M/s Bharat Sugar Mills (hereinafter referred to as “ the assessee”) was entitled to the benefit of Notification No. 12 of 2003-ST and the Notification no.32 of 2004-ST in respect of its liability to pay service tax on the amount of freight paid for transportation of the sugarcane from the place of production to the factory premises. In support of its claim, before the Commissioner (Appeals), the 2 assessee produced the undertakings/declaration from goods transport agency to the effect that the agency had not availed of the credit on input/capital goods and had also not availed of the benefit of exemption notification No.12 of 2003 –ST. Nevertheless, the Commissioner (Appeals) disallowed the claim. According to the Commissioner (Appeals), the benefit of exemption under notification no.32of 2004-ST was not available to the assessee and that the Board’s letter dated 27th July 2005 was not clarificatory and was required to be followed strictly. The said order has been set aside by the Tribunal. Under the impugned judgment and order, the Tribunal has relied upon the latter Circular dated 21st August 2008. It held that the assessee was entitled to the benefit of exemption under notification no.32 of 2004-ST. Learned advocate Mrs. Minikshee has appeared for the appellant Commissioner of Central Excise, Patna. She has submitted that before the assessing officer the assessee had not produced the requisite declaration on consignment note. The assessing officer was, therefore, justified in rejecting the claim of the assessee. In view of the declaration produced by the assessee from the transport agency and the latter Circular dated 21st August 2008, the Tribunal ought to have remitted the matter to the assessing officer for re-consideration. The Appeal is contested by learned advocate Mr. Ashish Giri. He has submitted that the Appeal does not invoke a substantial question of law. The present Appeal is, therefore, not maintainable. He has further submitted that the Tribunal has followed Circulars of the Board. The Tribunal cannot be said to have erred in making the impugned order in favour of the 3 assessee. We do agree with Mr. Giri. As recorded by the Commissioner (Appeals) the assessee did produce declaration from the transport agency in terms of Circular No.32 of 2004-ST to the effect that it had not availed of the credit on input/capital goods. Further, the Circular dated 21st August 2008 clarifies that the Circular dated 27th July 2005 was clarificatory and that the declaration given by the transport agency to the effect that neither the credit of duty paid on inputs or capital goods had been taken nor the benefit of notification No.12of 2003 had been taken by it would be sufficient for the purpose of availment of abatement by person liable to pay service tax. As the Tribunal has followed the Circulars issued by the Board, we see no substance in this Appeal. In fact, the Appeal does not invoke a substantial question of law. The Appeal is, therefore, not maintainable. For the aforesaid reasons, the Appeal is dismissed. In view of the above decision, Miscellaneous Appeal No.502 of 2010 stands disposed of. Neyaz/ ( R. M. Doshit,CJ.) (Jyoti Saran, J.)