Custom, Excise & Service Tax Tribunal
M/S. Marubeni India Pvt. Ltd vs Commissioner Of Service Tax on 27 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Service Tax Appeal No. 55491/2013
[Arising out of Order-In-Original No. 175-176/ST/PKJ/CCE/ADJ/2012 dated 25.10.2012 passed by Commissioner of Central Excise, (Adjn) New Delhi]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. B Ravichandran, Member (Technical)
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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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
M/s. Marubeni India Pvt. Ltd. Appellants
Vs.
Commissioner of Service Tax Respondent
New Delhi Appearance:
Shri Rachit Jain, Advocate for the Appellants Shri Rajeev Gupta, Commissioner (AR) with Shri Ranjan Khanna, DR for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. B Ravichandran, Member (Technical) Date of Hearing : 14.07.2016 Date of Decision : 27.07.2016 FINAL ORDER NO . 52634 /2016 Per Archana Wadhwa:
The appeal is directed against the adjudication order dated 25.10.2012 passed by the Commissioner, Central Excise (Adjudication) New Delhi. The order confirmed service tax demand of Rs.5,52,11,917/- and Rs. 5,10,826/- besides interest and penalties under Sections 75 and 78, as specified in the order. The total demand arises under three broad categories. Under the head Business Auxiliary Service in respect of service fee and handling commission remitted by the petitioner to its overseas holding company Tax of Rs.5,45,75,893/- was assessed. Demand under the head manpower recruitment or supply agency service is for remittances made for manpower supplied to it by its overseas holding company to the appellant. The tax demand on this head is Rs.4,76,196/- (for the periods 2007-08 to 2008 - 09) and Rs.3,96,829/- (for the period 2010-11). Under the head information technology software service the tax liability confirmed is Rs.1,59,828/- (for the periods 2008-09 to 2009-10); and Rs. 1,13,996/- (for the period 2010-11).
2. After hearing both sides duly represented by Shri Rachit Jain, learned advocate appearing for the appellant and Shri Rajeev Gupta, learned Commissioner (AR) and Shri Ranjan Khanna, learned DR appearing for the Revenue, we find that in respect of confirmation of demand under the category of business auxiliary service, the appellant unsuccessfully claimed benefit under Export of Service Rules, 2005. On this issue, we find that the issue is no longer res integra and stand decided by majority decision of the Tribunal in the following cases:-
1. Paul Merchants Ltd. vs. CCE, Chandigarh [2013 (29) STR 257 (Tri-Del)];
2. Microsoft Corporation (I) Pvt. Ltd. vs. CST, New Delhi 2014 (36) STR 766 (Tri-Del)]; and
3. Gap International Sourcing (India) Pvt. Ltd. vs CST, Delhi [2015 (37) STR 757 (Tri)]
3. Learned DR also agrees that the issue is decided. Accordingly, by following the same, we set aside the demand under the said category.
4. As regards confirmation of demand under the head manpower recruitment or supply agency, in respect of manpower supply by its own overseas holding company, we find that said issue also stand decided by following decisions:
1. CCE vs. Computer Sciences Corpn. India Pvt. Ltd.
[2015 (27) STR 62 (All)];
2014 (35) STR 496 (Gujarat)]; and
3. Volkswagen India Pvt. Ltd. vs. CCE 2014 (34) STR 135 (Tri-Mumbai)] As such, by following the said decisions, we hold that demand confirmation under the said category is also not sustainable.
5. As regards the demand of Rs. 1.59 lakh approx. and Rs. 1.13 lakh approx. confirmed under the category of information technology software services, the contention of the learned advocate is that demand was initially raised under the Business Auxiliary Support Services but stand confirmed by the adjudicating authority under the Information technology Software Services. As such, it is the contention of the learned advocate that the impugned order stand passed by the adjudicating authority by travelling beyond the show cause notice. For the above proposition, he relies upon the following decisions:
1. Hindustan Polymers Co. Ltd. vs. Collector {1999 (106) ELT (12 (SC)];
2. Bhor Industries vs. Union of India [2011 (266) ELT 444 (Bom)]; and
3. Deepak & Co. vs. CCE, New Delhi [2015 (38) STR 1010 (Tri-Del)]
6. Admittedly, the show cause notice proposed demand of duty under Business Auxiliary service and it is only during adjudication by considering the appellants stand that the demand may fall under the category of Information technology Software Services, it stand confirmed. As per declaration of law in the above decisions, allegations are required to be made by the Revenue very clearly in the show cause notice and adoption of classification of service under the heading different than the one proposed in the show cause notice amounts to passing the order beyond the scope of show cause notice which is not permissible and the impugned order is required to be quashed on the said ground itself. We order accordingly.
7. In view of the foregoing, we set aside the impugned order in toto and allow the appeal of the appellant with consequential relief to the appellant.
(Pronounced in the open court on 27/07/2016 )
( Archana Wadhwa ) Member(Judicial)
( B Ravichandran )
Member(Technical)
ss
5