Bombay High Court
Commissioner Of Central Tax, Pune vs Thermax Engineerting Construction Co. ... on 25 June, 2019
Author: N.J.Jamadar
Bench: M.S.Sanklecha, N.J.Jamadar
Rekha Patil 4-CEXA-89-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 89 OF 2019
The Commissioner of Central Tax, Pune. .. Appellant.
v/s.
Thermax Engineering Construction Co. Ltd. .. Respondent.
Mr. Karan Adik a/w Mr. Amol Joshi for the appellant.
Mr. Sriram Shridharan for the respondent.
CORAM: M.S.SANKLECHA, &
N.J.JAMADAR, JJ.
DATE : 25th JUNE, 2019. P.C:-
This Appeal under section 83 of the Finance Act, 1994 read with section 35G of the Central Excise Act, 1944 challenges the order dated 13th November, 2017 passed by the Customs Excise and Service Tax Appellant Tribunal (for short "Tribunal").
2 The Revenue urged the following two questions of law for consideration:-
"a) Whether on the facts and circumstances of the case and in law the CESTAT erred by holding that services are rendered abroad and payment by main contractor is received in foreign currency so the export related benefits accrue to the assessee by relying upon the case of M/s Suprasesh General Insurance, M/s Nipuna Services Ltd. And M/s Paul Merchants when all three 1 of 3 ::: Uploaded on - 28/06/2019 ::: Downloaded on - 15/07/2019 02:41:37 ::: Rekha Patil 4-CEXA-89-2019.doc are before the Hon'ble High Court?
b) Whether on the facts and circumstances of the case demand was rightly raised for service tax on advance in terms of Section 67(3) of the Finance Act, 1994?"
3 We note that by the impugned order, the Tribunal has disposed of two appeals filed before it. One by the Revenue and other by the Assessee. The question (a) has been raised in the appeal filed by the Assessee and question (b) herein-above arose in the appeal filed by the Revenue. In these circumstances, it would be necessary for the Revenue to file two appeals as held by this Court in The Commissioner of Income Tax 1 V/s The Shipping Corporation of India Ltd. (Appeal No. 166 of 2015) dated 14th November, 2017. In the above case, this Court has directed that where more than one appeal before the Tribunal has been disposed of by a common order and if a party is aggrieved by the common order passed in the appeals before the Tribunal then it is incumbent upon the party so aggrieved to file that many number of appeals as have been disposed of adverse to the party by the Tribunal. 4 In view of the above decision, Mr. Adik, the learned Counsel appearing for the Revenue states that so far as this appeal is concerned, he would urge only question (b) for consideration. However, he seeks liberty to file a separate appeal in respect of question (a) which arises from appeal filed by the Assessee before the Tribunal. Mr. Adik states that 2 of 3 ::: Uploaded on - 28/06/2019 ::: Downloaded on - 15/07/2019 02:41:37 ::: Rekha Patil 4-CEXA-89-2019.doc he would file necessary application for condonation of delay along with its appeal in respect of question (a) herein-above. Liberty as sought for granted. Thus, this appeal is restricted only to question (b) which alone is pressed.
5 Appeal is admitted on the substantial question of law (b) above, which reads as under:-
b) Whether on the facts and circumstances of the case demand was rightly raised for service tax on advance in terms of Section 67(3) of the Finance Act, 1994?"
6 Mr. Shriram waives service on behalf of respondent. 7 Mr. Adik seeks leave to amend the appeal so as to indicate the order number reflected in the Tribunal's order in respect of this appeal as directed in the case of Shipping Corporation of India Ltd. (Supra). 8 Amendment be carried out forthwith. Re-verification dispensed with.
(N.J.JAMADAR,J.) (M.S.SANKLECHA,J.)
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