Custom, Excise & Service Tax Tribunal
M/S Sumi Motherson Innovative ... vs Cce, Noida on 18 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 18/09/2014. DATE OF DECISION : 18/09/2014. Service Tax Appeal No. 264 of 2009 [Arising out of the Order-in-Appeal No. 190/CE/APPL/Noida/ 2008 dated 31/12/2008 passed by The Commissioner (Appeals), Meerut II (Noida).] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, 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? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Sumi Motherson Innovative Engineering Ltd. Appellant Versus CCE, Noida Respondent
Appearance Shri Manish Gaur, Advocate for the appellant.
Shri Amresh Jain, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 53744/2014 Dated : 18/09/2014 Per. Archana Wadhwa :-
After hearing both the sides, we find that the appellant was earlier known as SWS India (Holding) Ltd. In the year 1998, they entered into a contract with SWS Ltd., Japan for providing consulting engineering services. Though the payment was received by the appellant from SWS, Japan but the services were actually provided to two subsidiary companies of SWS, Japan, known as SUMI Motherson Integrated Technologies Ltd. and SUMI Motherson Innovative Engineering Ltd. [hereinafter referred to as two Indian companies].
2. Subsequently the said two Indian companies amalgamated with the appellant in terms of the High Courts order dated 25/03/03 approving the scheme of amalgamation w.e.f. 01/04/02. Accordingly, the appellants name changed to the present name i.e. M/s SUMI Motherson Innovative Engineering Ltd.
3. The demand in the present case relates to providing of consulting engineering services in terms of the agreement 1998, for the period April 2002 to 31st March 2004. The said demand was raised by way of issuance a show cause notice dated 13th February 2007 alleging that the appellant has provided services to SWS, Japan in terms of the said agreement and had received payments from them, which are liable to service tax. The said proceedings culminated into an order passed by the original Adjudicating Authority.
4. On appeal, the appellants assailed the impugned order on three legal issues. One that the services were provided by the appellant to two Indian units, which stand amalgamated with them subsequently in terms of the High Courts order. As such it has to be held as a service to self. Secondly, the appellant contended that services are not covered under the definition of consulting engineering services and thirdly on the ground that even if the services are consulting engineering services, the same would be export of the services in as much as they have received the consideration for the same in convertible foreign exchange from SWS, Japan and the services would be exempted from payment of service tax in terms of Notification No. 21/03-ST. The demand was also assailed on the point of time bar.
5. The Commissioner (Appeals) remanded the matter to the original Adjudicating Authority for fresh decision on the second and third issue. As regards the effect of amalgamation, she observed that in as much as the liability of the appellant has arisen prior to the actual agreement, the appellant would be liable to pay service tax. The said part of the impugned order of Commissioner (Appeals) is challenged before us.
6. After hearing both the sides, we find that the appellate authority has not considered the effect of amalgamation, in the light of the settled decisions of various courts as also of the Honble Supreme Court in respect of the effect of amalgamation. We further note that the appellate authority has observed that though the said issue was raised before the original Adjudicating Authority, he has not discussed the same and has not given any finding on the same. Similarly, no finding was given by the Commissioner (Appeals) on the point of limitation.
7. In view of the above, we are of the opinion that in as much as the matter in respect of the other issues stand remanded by Commissioner (Appeals) and in view of the admitted position that the original Adjudicating Authority did not give any finding on the effect of amalgamation, the Commissioner (Appeals) should have remanded the matter on this count also. As we are informed that the remand proceedings are still pending before the original Adjudicating Authority, we remand the present appeal also for fresh decision on the disputed issue of effect of amalgamation. The Adjudicating Authority would also examine the appellants plea of exemption in terms of Notification No. 21/03-ST and 6/99-ST as also on the point of limitation. In a nut shell we make the remand is an open remand and the appellants are at liberty to raise any legal issues in their defence plea.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
??
??
??
4