Customs, Excise and Gold Tribunal - Bangalore
Chandra Shipping And Trading Services vs The Commissioner Of Central Excise And ... on 15 November, 2007
Equivalent citations: [2008]12STJ320(CESTAT-BANGALORE), 2008[10]S.T.R.409
ORDER S.L. Peeran, Member (J)
1. The appellants are required to pre-deposit total Service Tax and Education Cess of Rs. 17,40,024/-. The appellants were discharging Service Tax under the category of CHA on availing the benefit of reimbursable charges and abatement in terms of Board's Circular. Revenue has proceeded to levy Service Tax in respect of the balance of the amount on which they have availed this benefit on the ground that they not maintained separate records and not produced the evidence. This has been seriously contested by the appellants on the ground that the Board's Circular does not provide for producing evidence from their customers with regard to the reimbursement of the amount. They have shown the amount which is reimbursable in their invoices and that is sufficient evidence. That plea has not been accepted by the Commissioner and hence, he has confirmed the demands.
2. Heard learned advocate and learned JDR. Both sides have reiterated their submissions.
3. The learned JDR submits that in absence of evidence produced, they are required to pre-deposit the balance of the amount.
4. The learned Counsel reiterates the submissions that there is no provision carved out in the Board's Circular to produce the evidence. He submits that their customer would not make the payment unless there is a provision for reimbursement. He submits that this Bench has already given a final order on the very same issue in the case of GAC Shipping and other orders. He assures to produce the copies of the same at the time of final hearing.
5. Another issue in this matter pertains to assessee availing the credit on 'Input Service'. The learned Counsel submits that this issue has been referred to Larger Bench and this Bench has in subsequent case granted waiver of pre-deposit in the case of ABB Ltd. in Stay Application No. 228/2007 in Appeal No. 336/07 which was heard and disposed of today.
6. The learned JDR again reiterates the findings given by the Commissioner and prays for putting the appellants on terms.
7. On a careful consideration, we notice that the assessee has already paid Service Tax of 85% on the value arrived at by them. They have availed the benefit in terms of Board's Circular and Cenvat Credit Rules. The authorities have denied the benefit on the ground that they have not produced the evidence. The assessee has shown reimbursement of the amounts made to the customers in their invoices. The issue is as to whether they are required to produce evidence from the customers? There is force in counsel's submission that the Board's Circular does not provide for such a provision. In any case, they have produced other circumstantial evidence in the form of invoices and letters which can be taken into consideration. At this stage, we grant waiver of pre-deposit of the amount.
8. With regard to the second issue, the matter has been referred to Larger Bench and in similar stay matters in the case of ABB Ltd., waiver has been granted. Therefore, stay application is allowed granting waiver of pre-deposit and staying its recovery. The ABB Ltd. matter is listed for hearing on 18.3.2008, hence, this appeal may also be listed for hearing on 18th March 2008. There shall be no recovery till the disposal of the appeal.
(Pronounced and dictated in open Court)