Custom, Excise & Service Tax Tribunal
Kavita Industrial & Labour Suppliers vs Pune I on 7 December, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: ST/748/2012
APPLICATION NO: C/Stay-2637/2012
[Arising out of Order-in-Appeal No: P-I/MMD/157/2012 dated 14/08/2012 passed by the Commissioner of Central Excise (Appeals), Pune I.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Kavita Industrial & Labour Suppliers
Appellant
Vs
Commissioner of Central Excise
Pune I
Respondent
Appearance:
Shri S.S. Hawaldar, Advocate for the appellant Shri Rakesh Goyal, Addl. Commissioner (AR) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 07/12/2012 Date of decision: 07/12/2012 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal and stay application are directed against the Order-in-Appeal No: P-I/MMD/157/2012 dated 14/08/2012 passed by the Commissioner of Central Excise (Appeals), Pune I.
2. The appellant M/s. Kavita Industrial & Labour Suppliers is undertaking job-work and also undertaking supply of labour and is registered with the department for the aforesaid purpose. During the period 01/04/2005 to 31/03/2006, the appellant discharged service tax liability of ` 17,18,262/-. The department, after examining the records, found that the total service tax liability as per the figures given in the balance sheet during the period amounted to ` 26,70,541/- as against the amount of ` 17,18,262/- paid by them. Accordingly, show cause notice was issued and the demand was confirmed for an amount of ` 25,48,885/- including education cess. The appellant preferred an appeal before the lower appellate authority wherein they claimed that the difference is due to the job-work undertaken by them during the impugned period and the goods were received by them under Rule 4(5)(a) of the CENVAT Credit Rules, 2004 and, therefore, on these activities it is excise duty that is attracted and not service tax. However, they were not able to produce all the documents before the authorities. In view of the above the lower appellate authority rejected the contention and upheld the demand and hence the appellant is before us.
3. The learned advocate for the appellant submits that they could not produce the challans relating to job-work undertaken by them before the adjudicating authority and before the lower appellate authority, they had only few of the challans with them. However, he submitted that they have all the challans relating to job-work undertaken by them and they will be now in a position to submit these documents for consideration before the adjudicating authority. Accordingly, he submits that they will be able to establish that the service tax liability is only to the extent of ` 17,18,262/- which they have already discharged.
4. The learned Additional Commissioner appearing for the Revenue submits that, from the impugned orders of the adjudicating and the appellate authority, it is clear that they had not produced all the challans relating to job-work before the said authorities and, therefore, the conclusion drawn by these authorities are correct in law.
5. We have carefully considered the submissions made by both the sides and also perused the copies of the few challans submitted by the appellant. On perusal of these challans, it is seen that the goods are received and processed by the appellant under the procedure prescribed under Rule 4(5)(a) of the CENVAT Credit Rules, 2004. If that be so, the appellants would not be liable to pay any service tax on the job-work undertaken by them. Therefore, in the interest of justice, the matter has to go back to the original adjudicating authority for consideration of the claim of the appellant that the difference in figures given in the balance sheet and service tax returns are on account of job-work undertaken by them. Therefore, after dispensing with the requirement of pre-deposit of the dues adjudged against the appellant, we remand the case back to the original adjudicating authority for considering the matter afresh. The appellant is directed to produce before the said authority all the challans in respect of the job-work undertaken by them and satisfy the adjudicating authority that they were not liable to pay service tax on these charges.
6. Thus, the appeal and the stay application are disposed of by way of remand.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 2