Custom, Excise & Service Tax Tribunal
Cce, Hyderabad vs M/S. Hsbc Electronic Data Processing ... on 21 March, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:21/03/2013
Date of decision:21/03/2013
Sl.
No.
Appn. No.
Appeal No.
Appellant
Respondent
Impugned Order
Passed by
1.
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ST/552/2009 CCE, Hyderabad M/s. HSBC Electronic Data Processing (I) Pvt. Ltd.
OIA No.03/2009(H-IV) ST dt. 30/03/2009 CCE(Appeals), Hyderabad
2.
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ST/1140/2010 M/s. HSBC Electronic Data Processing (I) Pvt. Ltd CCE, Hyderabad OIA No.23/2009 (H-IV)S.Tax, dt. 21/12/2009
-do-
3. ST/Stay/ 477/2012 ST/754/2012
-do-
-do-
OIA No.13/2012 (H-IV) S.Tax, dt. 16/02/2012
-do-
4. ST/Stay/ 1209/2012 ST/1701/2012
-do-
-do-
OIA No.92/2012 (H-IV)S.Tax dt. 18/04/2012
-do-
5. ST/Stay/ 2373/2012 ST/3275/2012
-do-
-do-
OIA No.213/2012 (H-IV)S.Tax dt. 22/08/2012
-do-
6. ST/Stay/ 2442/2012 ST/3362/2012
-do-
-do-
OIA No.219&220/2012 (H-IV)S.Tax dt. 23/08/2012
-do-
7. ST/Stay/ 2443/2012 ST/3363/2012
-do-
-do-
-do-
-do-
8. ST/Stay/ 804/2012 ST/1172/2012
-do-
-do-
OIO No.6/2012-Adj(Commr.)ST dt. 31/01/2012 CCE, Hyderabad
9. ST/Stay/ 1742/2012 ST/2390/2012
-do-
-do-
OIO No.27/2012-Adj(Commr)ST dt. 28/05/2012 CCE, Hyderabad For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, 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 should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordship wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Appearance Mr. N. Venkataram, Sr. Advocate, Mr. K.Krishnamurthy, Consultant and Mr. Abhishek A Rastogi, Advocate for the assessee.
Mr. P.R.V. Ramanan, Special consultant and Mr. R.K.Singla, Commissioner(AR) for the Revenue.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] Appeal No.ST/552/2009 filed by the Department, appeal No.ST/1140/2010 filed by M/s. HSBC Electronic Data Processing (I) Pvt. Ltd. and the stay applications filed by the said company in their appeals viz. ST/754, 1172, 1701, 2390 & 3275/2012 came up for hearing on 21/03/2013. The stay applications filed by the company in two other appeals viz. ST/3362 & 3363/2012, which did not figure in the cause list were called for by this Bench after noting that a common issue was involved in all the matters. We also noted that the operation of the order impugned in appeal No.ST/1140/2010 had been stayed by this Bench vide Stay Order No.1370/2011 dt. 15/12/2011, that similar orders of the lower appellate authority were under challenge in other appeals filed by the company and that a common issue was involved in all the cases. Therefore, after allowing the stay applications, we took up all the cases for final hearing and disposal.
2. In six appeals filed by the company and the appeal filed by the Department, the substantive issue arose as to whether the company was entitled to claim refund of unutilized CENVAT credit taken on input services which were claimed to have been used for providing their output services which were claimed to have been exported by them. The remaining two appeals formed another category. In appeal No.ST/2390/2012, the question arose as to whether the assessee was entitled to take CENVAT credit on the input services at all. The issue that arose in the remaining appeal (ST/1172/2012) was whether the assessee was liable to pay service tax, under reverse charge mechanism, on a service classified as manpower recruitment or supply agency service and held to have been received by the assessee from abroad.
The relevant particulars of the all the appeals of the first category are tabulated below:
Sl.No. Appeal No. Appellant Period of dispute OIO No. OIA No. 1 ST/552/2010 CCE, Hyderabad 12/2005 to 03/2008 No.13-R/2008 dt. 31/12/2008 No.03/2009(H-IV) ST dt. 30/03/2009 2 ST/1140/2010 HSBC EDP (I) Pvt. Ltd.
04/2008 to 06/2008 No.5-R/2009 dt. 30/01/2009 No.23/2009(H-IV) S.Tax. dt. 21/12/2009 3 ST/754/2012
-do-
07/2008 to 03/2010 No.23-R/2011 dt. 30/08/2011 No.13/2012(H-IV) S.Tax. dt. 16/02/2012 4 ST/1701/2012
-do 04/2010 to 09/2010 No.56-R/2011 dt. 29/11/2011 No.92/2012(H-IV) S.Tax. dt. 18/04/2012 5 ST/3275/2012
-do-
10/2010 to 03/2011 No.38-R/2012 dt. 27/03/2012 No.213/2012 (H-V) S.Tax. dt. 22/08/2012 6 ST/3362/2012
-do-
04/2011 to 06/2011 No.55-R/2012 dt. 15/05/2012 No.219&220/2012 (H-IV) S.Tax. dt. 23/08/2012
7.
ST/3363/2012
-do-
07/2011 to 09/2011 No.64-R/2012 dt. 06/06/2012
-do-
The particulars of the two appeals in the second category are tabulated below:
Sl.No. Appeal No. Appellant Period of dispute OIO No. Result 1 ST/1172/2012 HSBC EDP (I) Pvt. Ltd.
2005-06 to 2009-10 No.6/2012 dt. 31/12/2012 Rs.22,82,07,695/- demanded in terms of Section 66A for the period from 05-06 to 09-10.2
ST/2390/2012
-do-
04/2010 to 03/2011 No.23/2012 dt. 28/05/2012 CENVAT credit of Rs.31,11,64,771/- entirely denied.
3. M/s. HSBC Electronic Data Processing (I) Pvt. Ltd., hereinafter referred to as the assessee, commenced their operations at Delhi, Hyderabad, Visakhapatnam, Bangalore and Kolkata in June 2001 as 100% Export-Oriented Units(EOUs) registered with the respective Software Technology Parks of India (STPIs). HSBC group is said to be one of the largest banking and financial services groups in the world. It is said to have outsourced the customer care and back office support services to delivery centres. HSBC group has formed HSBC Global Resourcing (UK) Ltd. (HGRL), reportedly, for the purpose of co-ordination and control of the services rendered by the delivery centres. HGRL is said to be operating through a model of delivery centres spread all over the world, aiming at providing the best service to the banking customers of HSBC group. The assessee is said to be one of such delivery centres established to operate in India. HGRL has entered into Master Service Agreements with various HSBC banking entities across the globe referred to as Business Partners. HGRL has also entered into an agreement dt. 01/01/2006 with the assessee to provide services to the Business Partners and this agreement is called Sub-Contracting Agreement. The assessee has entered into Performance Level Agreement with the Business Partners. Under this entire scheme of business, the assessee is said to have rendered to the customers of the Business Partners various services such as credit card and debit card operations, contact centre services, payment services, claims processing, global research, strategic transaction support, investment administration of funds etc. HGRL appointed the assessee to provide such services to the Business Partners and their banking customers, which HGRL had contracted to provide under the Master Service Agreement with the Business Partners.
4. In other words, the assessee claims to have provided the aforesaid services on behalf of their client viz. HGRL and, therefore, all such services are claimed to be covered by the definition of Business Auxiliary Service (BAS) under Section 65(19) of the Finance Act, 1994. The assessee accordingly obtained Service Tax registration since 13/08/2007. As the service recipients viz. the Business Partners (HSBC banking entities) and their customers were located outside India and payments for such services were received in convertible foreign exchange, the services provided by the assessee appear to have satisfied the relevant conditions laid down under the Export of Services Rules, 2005. Only a negligible part of the services provided by the assessee is said to have been provided within the country. For providing output services, the assessee procured various input services and took CENVAT credit of the service tax paid thereon. As only a small part of such credit was utilized for payment of service tax on domestic output services, a major portion of the CENVAT credit remained unutilized.
5.1. Refund of such CENVAT credit which remained unutilized from December 2005 was claimed by the assessee from time to time under Rule 5 of the CENVAT Credit Rules(CCR) 2004 read with Notification No.5/2006-CE(NT) dt. 14/03/2006. The assessee thus claimed refund of a total amount of Rs.110,06,60,464/- which has the following break-up:
Sl.No. Appeal No. Period Refund claimed
1.
ST/552/2009 12/2005 to 3/2008 Rs.25,61,75,161/-
2. ST/1140/2010 4/2008 to 6/2008 Rs.5,30,31,404/-
3. ST/754/2012 7/2008 to 3/2010 Rs.41,67,13,899/-
4. ST/1701/2012 4/2010 to 9/2010 Rs.13,84,05,558/-
5. ST/3275/2012 10/2010 to 3/2011 Rs.14,80,25,265/-
6. ST/3362/2012 4 /2011 to 6/2011 Rs.3,73,99,033/-
7. ST/3363/2012 7/2011 to 9/2011 Rs.5,09,10,144/-
5.2. The refund claim for the period 12/2005 to 3/2008 was rejected by the adjudicating authority on the ground that the services exported by the assessee were Information Technology Services which were excluded from BAS and hence not taxable. An appeal filed against this decision of the adjudicating authority was allowed by the Commissioner(Appeals) and the Revenues appeal is against the decision of the appellate authority which held that the services exported by the assessee fell under BAS, a taxable service and hence they were entitled to claim refund of the CENVAT credit. The refund claim for the period from April to June, 2008 was also rejected by the adjudicating authority in the same manner as above but the appellate authority held that the output services were taxable under Information Technology Software Services (ITSS) and hence the assessee was eligible to claim refund of CENVAT credit for the period from 16/05/2008, the date on which ITSS was introduced as a taxable service. The appellate authority, on this basis, remanded the matter to the original authority for requantification of the amount to be refunded. Its order is under challenge in the assessees appeal No.ST/1140/2010 before us. The refund claims filed by the assessee for the total period from 7/2008 to 9/2011 were also rejected by the original authority holding that the output services exported by them were not taxable under BAS or ITSS or Online Information Database Access or Retrieval Services(OIDARS) or Business Support Services(BSS). The orders passed by the adjudicating authority were set aside by the Commissioner(Appeals) who found violation of natural justice and remanded the matters to the lower authority for de novo decision. The orders passed by the Commissioner(Appeals) for the aforesaid period (July 2008 to September 2011) are under challenge in appeals Nos.ST/754, 1701, 3275, 3362, 3363/2012.
6.1. Coming to the second category of appeals, we note that, in a show-cause notice dt. 11/02/2011 issued to the assessee, CENVAT credit of Rs.26,32,69,482/- which was allegedly taken irregularly on input services was proposed to be denied and equal amount was proposed to be recovered under Rule 14 of the CCR, 2004 read with the proviso to Section 73(1) of the Finance Act 1994 and an amount of Rs.25,85,61,094/- was demanded as service tax under the said proviso on certain services allegedly received by the assessee from abroad. This show-cause notice also demanded interest on the aforesaid amounts under Section 75 of the Act besides proposing penalties under Sections 76 to 78 of the Act. These demands/proposals were contested by the assessee on numerous grounds. In adjudication of the dispute, the Commissioner confirmed demand of service tax to the extent of Rs.22,82,07,695/- on the services found to have been received by the assessee from abroad during the period 2005-06 to 2009-10 and also ordered for payment of interest thereon. He also imposed penalty equal to service tax on the assessee under Section 78 and a separate penalty on them under Section 76. However, the learned Commissioner dropped the proposal for recovery of an amount equal to the CENVAT credit which was alleged in the show-cause notice to have been irregularly availed by the assessee on input services. He did so in view of the rejection, by the original and first appellate authorities, of the assessees claim for refund of the unutilized CENVAT credit. The adverse part of the appellate Commissioners decision has been challenged by the assessee in appeal No.ST/1172/2012. The Commissioners decision favourable to the party has not been challenged by the department.
6.2. In a show-cause notice dt. 18/10/2011 issued to the assessee, CENVAT credit of Rs.31,11,64,771/- which was allegedly taken irregularly on input services from April 2010 to March 2011 was proposed to be denied to them and equivalent amount was proposed to be recovered from them under Rule 14 of the CCR 2004 read with Section 73 of the Act, interest thereon was also proposed to be recovered under Rule 14 read with Section 75 and a penalty was proposed under Rule 15 read with Section 78. These proposals were also contested by the assessee on numerous grounds. In adjudication of the dispute, the learned Commissioner confirmed the entire demand, ordered for recovery of interest thereon and imposed a penalty of Rs.6 crores. This decision of the Commissioner is under challenge in the assessees appeal No.ST/2390/2012.
7. Heard both sides.
8.1. The submissions made by the learned senior advocate for the assessee in the appeals pertaining to refund claims can be summarized as follows:-
a. The Commissioner(Appeals) had no power to remand the matters to the lower authority and hence should have decided the cases himself on merits. (Reliance placed on Commissioner Vs. Orient Crafts Ltd. [2011(21) STR 302 (Tri. Del.)] b. All the facts and documents necessary for determining the nature of output services exported by the assessee and the nexus between such services and the input services relevant to the refund claims were available to the Commissioner(Appeals) and he should have independently examined the materials and a final decision on the substantive issue on merits should have been taken. The output services provided by the assessee were classifiable under BAS in terms of clause (iii) or clause (vi) or clause (vii) of the definition of the service given under Section 65(19) of the Finance Act 1994.
c. Other assessees with similar input/output services were granted refund under Rule 5 of the CCR 2004. In the Hyderabad Commissionerate itself, the benefit was allowed to one M/s. Knoah Solutions. Claims of refund of unutilized CENVAT credit taken on similar services were allowed in Bangalore and Kolkata Commissionerates also.
d. In case the services exported by the assessee could not be classified under BAS, they could alternatively be classified under BSS.
e. CBECs Circular No.120/1/2010 dt. 19/1/2010 was misinterpreted by the lower appellate authority. The Circular intended to allow refund of CENVAT credit and did not require one-to-one correlation between input service and output service.
f. The assessee consistently classified their output services under BAS inasmuch as the contractual arrangement between them, HGRL, the Business Partners and their banking customers always remained the same during the entire period of litigation (December 2005 to September 2011). But the Department was not consistent in classifying the services. For the period from December 2005 to June 2008, they classified the services under Information Technology Service (ITS) which was excluded from BAS till 16/05/2008. For the period from July 2008 to September 2010, the Department was agreeable for classification of the services under the head operational or administrative assistance in any manner which expression was inserted in the definition of BSS from 01/05/2011 only. However, post-01/05/2011 when the services were classifiable under BSS as per the Departments own view, they were not so-classified but held to be not taxable under BAS. Thus the classification of the services was changed arbitrarily by the Department from time to time despite the fact that the nature of services remained the same throughout.
g. For the aforesaid reasons, the impugned orders are liable to be set aside and the cases to be remanded to the original authorities for de novo adjudication.
8.2. The learned counsel for the assessee also pointed out that appeal No.ST/2390/2012 filed by them was directed against denial of CENVAT credit by the Commissioner of Service Tax and that the latters decision was based on the rejection of refund claim filed by the former for the same period. It was submitted that, where the question of refundability of CENVAT credit itself was liable to the remanded to the original authorities, the connected issue of admissibility of CENVAT credit should also be remanded to the same authorities. The learned counsel also made a plea for remand of the dispute involved in appeal No.ST/1172/2012.
9. The submissions made by the learned special consultant for the Revenue are summarized below:-
a. The services rendered by the assessee were not on behalf of HGRL and hence did not satisfy clause (vi) of Section 65(19) of the Finance Act 1994. [Reliance placed on Auto Coats Vs. Commissioner [2009(15) STR 398 (Tri. Chennai)] b. The decision of the Commissioner(Appeals) as recorded in Order-in-Appeal No.3/2009 dt. 30/03/2009 is apparently based on a misunderstanding of the expression on behalf of employed in the text of the definition of BAS. This expression connotes an agency relationship where one is acting on behalf of another or representing another. In the instant case, the assessee was rendering services to their client HGRL and not providing any service to any customer of HGRL on behalf of HGRL. Therefore, the view taken by the learned Commissioner(Appeals) that the assessee rendered the services to the customers of HGRL on behalf of the latter is factually erroneous. [For the meaning of on behalf of, reliance placed on Law Lexicon- page 4758.] c. The services provided by the assessee were also not covered by clause (iii) or clause (iv) of Section 65(19) ibid.
d. As the applicability of clause (vii) of Section 65(19) was dependent on the services being incidental or auxiliary to the services specified under clauses (i) to (vi), the services provided by the assessee would not be covered by clause (vii) either. In the result, the services rendered by the assessee would not fall under BAS and consequently the same were not taxable services and, for this reason, no refund of unutilized CENVAT credit taken on input services could be validly claimed.
e. The reliance placed by the learned Commissioner(Appeals) on Commissioner Vs. Deloitte Tax Services India Pvt. Ltd. [2008-TIOL-629-CESTAT-BANG] is inappropriate inasmuch as the services rendered by the assessee in the instant case were in relation to computer systems and the coverage of the services rendered by Deloitte under BAS was not examined with specific reference to the various clauses of the definition of BAS.
f. In the instant case, all the exports were made under SOFTEX forms which would imply that the services rendered by the assessee were transmitted through communication links and no mediawise export clearances were involved. The assessee had themselves declared in the SOFTEX forms filed with the STPI that they were sellers of software and that such software had been developed and exported via authorized and legitimate datacom links. The export clearance letters issued by the STPI also clearly referred to the assessees activity as export of software. These software exports as ITS stood excluded from the ambit of BAS. The apex courts judgment in the case of Tata Consultancy Services Vs. State of Andhra Pradesh [2004(178) ELT 22 (SC)] [which had been referred to by the counsel] is not applicable to the above facts of this case.
g. The registration of the assessee with Department under BAS would not ipso facto enable them to claim that they were rendering BAS during the material period. The exact nature of their services has to be ascertained from the particular facts of the case and the relevant documentary materials including the relevant agreements, declarations made by the assessee before the STPI, LOP issued by the STPI etc. On a correct appreciation of all such materials, the services rendered by the assessee during the material period would appear to be ITS which was not part of BAS during such period.
h. The alternative plea for classification of the assessees output services under BSS has not been substantiated.
10. We have given careful consideration to the submissions. We find that the assessee claimed a total amount of over Rs.110 crores as refund of unutilized CENVAT credit taken on input services which were claimed to have been used for providing output services classified as Business Auxiliary Services to service recipients located abroad. This claim of refund was for the period from December 2005 to September 2011. The original authorities rejected the claim on the ground that the output services exported by the assessee were not taxable as BAS, ITSS, OIDARS or BSS. The orders passed by the original authorities on the refund claims for the period from July 2008 to September 2011 were set aside by the Commissioner(Appeals) who remanded the matters to the lower authorities for de novo decision. The reason for such remand of the case, as stated by the Commissioner(Appeals), reads thus:
Prima facie it appears that the lower authority has ignored the appellants submissions and the documents which the appellant considered in their favour and out rightly rejected their claim without justifiable reasons and findings. Therefore I find it appropriate that the issue is re-examined afresh ensuring principles of natural justice. It thus appears that, on the part of the learned Commissioner(Appeals), no attempt was made to determine the exact nature of the output services exported by the assessee, nor to determine the nexus between the input services and the output services. The learned Commissioner(Appeals) chose to remand the cases to the lower authorities for de novo adjudication. As rightly submitted by the learned senior counsel for the assessee, it was not open to the appellate authority to do so inasmuch as he did not have the power of remand. All the relevant documents including the various agreements referred to by the learned counsel were available to the appellate authority which should have examined the documents for ascertaining the correct nature of the output services provided by the assessee. The orders passed by the learned Commissioner(Appeals) remanding the cases to the lower authorities for de novo adjudication are contrary to the statutory scheme and hence require to be set aside.
11. We have also found that the assessee has consistently claimed that their output services were classifiable under BAS in terms of clause (iii) or clause (vi) or clause (vii) of the definition under Section 65(19) of the Finance Act 1994 and has accordingly obtained registration with the Department. However, the stand taken by the Department regarding the nature of the services exported by the assessee has not been consistent. For the period from December 2005 to June 2008, the Department classified the services under ITS which was excluded from BAS till 16/05/2008. For the period from July 2008 to September 2010, the Department was agreeable to consider the assessees services as operational or administrative assistance in any manner which expression was inserted in the definition of BSS from 01/05/2011 only. However, from 01/05/2011, the services were not classified under BSS but held to be not taxable under BAS. In this approach of the Department, we see an element of arbitrariness which is anathema to taxation. The taxman should be consistent in the matter of classifying services under Section 65(105) of the Finance Act 1994. The learned counsel for the assessee has submitted that the scheme of contractual arrangements between the assessee, HGRL, Business Partners etc. remained the same during the period of dispute and this submission has not been contested by the Department. If that be so, the classification of the output services exported by the assessee has got to be done with reference to the entry (under Section 65(105) of the Act) claimed by the assessee and any particular rival entry invoked by the Revenue. The nature of activities should be correctly deciphered from the terms of the relevant agreements and the same should be classified under the appropriate head under Section 65(105) of the Act. It is not open to the taxman to approbate and reprobate in this exercise. A correct decision on the subject refund claims should depend on the correct classification of the output services provided by the assessee to the foreign entities. Hence a remand of the case is warranted.
12. Where the output services of the assessee are found to be taxable and classifiable under the appropriate head, the next question which would arise in the context of dealing with the refund claims is whether the input services in respect of which the refund was claimed were essential for the assessee to provide the output services to the service recipients located abroad. In other words, one has to detect a nexus between the input services and the output services, without which any refund of unutilized CENVAT credit taken on the input services will not be admissible to the provider/exporter of output services. We find that the original authorities did not have the occasion to determine any such nexus as they found the output services to be non-taxable. Further, where a nexus is found between the input services and the output services, the amount of CENVAT credit to be refunded to the assessee will have to be determined in accordance with the procedure laid down by the Board in Circular No.120/1/2010 dt. 19/01/2010. On the facts of the present case, therefore, the entire exercise including determination of the nature of output service and its classification, determination of nexus between input service and output service and quantification of refund has to be undertaken at the original level. Therefore, the cases require to be remanded to the adjudicating authorities concerned for de novo adjudication.
13. In one case(ST/2390/2012), CENVAT credit was denied to the assessee in view of rejection of the relevant refund claim. This would mean that any decision on the refund claim will have a bearing on the admissibility of CENVAT credit to the assessee. Therefore the case against denial of CENVAT credit on input services also has to be remanded to the adjudicating authority concerned.
14. Appeal No.ST/1172/2012 filed by the assessee is directed against the Commissioners order demanding service tax of Rs.22.82 crores on the services held to have been received by them from overseas-located service providers and imposing penalties on the assessee. The impugned order was passed in adjudication of a show-cause notice which invoked the proviso to Section 73(1) of the Finance Act 1994 on the alleged ground of suppression of facts by the assessee, for recovery of service tax under reverse charge mechanism. The learned Commissioner dropped the demand for the period prior to 18/04/2006 and confirmed demand to the extent of Rs.22.82 crores for the period from 18/04/2006, the date on which Section 66A of the Act came into force. This demand was based on the finding that the assessee received manpower recruitment or supply agency service from the overseas-based HSBC entities during the said period. In the appeal before us, the assessee has contended that the adjudicating authority travelled beyond the scope of the show-cause notice, that the Commissioner misinterpreted the relation between the overseas-HSBC entities and the employees assigned/deputed by them to the appellant, that no services classifiable under manpower recruitment or supply agency services were received by the appellant from the overseas-entities and hence the appellant did not have service tax liability under the reverse charge mechanism, and that the appellant had always been maintaining the bona fide belief that they were not liable to pay service tax on the employees assigned to them by the overseas-entities and therefore the extended period of limitation was not invocable in this case. The appellant has also relied on case law on various points. On a perusal of the impugned order, we find that some of the submissions made by the assessee were not considered by the adjudicating authority. No plea of revenue-neutrality was raised before us on behalf of the assessee. If this plea was made in their reply to the show-cause notice, the same may also be considered by the Commissioner while dealing with the limitation issue. In the result, the liability, if any, of the assessee under Section 66A ibid, the invocability of the proviso to Section 73(1) ibid etc. need to be re-examined by the adjudicating authority. In this view of the matter, the dispute covered by appeal No.ST/1172/2012 is also found to be fit for remand.
15. Needless to say that the dispute involved in the Departments appeal also has to be remanded for de novo adjudication.
16. In the result, the impugned orders are set aside and these appeals are allowed by way of remand to the respective adjudicating authorities for de novo adjudication of the disputes in accordance with law. Considering the peculiar facts and circumstances of this case, it is further directed that final orders of adjudication shall be passed within three months from the date of receipt of this order. Needless to say that the assessee should be given a reasonable opportunity of adducing evidence and of being personally heard by the adjudicating authorities. Stay applications also stand disposed of.
(Operative part of this order pronounced in court on conclusion of the hearing) (B.S.V. MURTHY) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 23