Custom, Excise & Service Tax Tribunal
M/S. Rungta Projects Ltd vs Cce, Allahabad on 18 February, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Block No. 2, R.K. Puram,
NEW DELHI
COURT-IV
ST/STAY/1931/09 & ST/MISC./787/10
IN & SERVICE TAX APPEAL NO. ST/523/2009
[Arising out of Order-in-Original No. (ST-47/2008)33 of 2009 dated 20.3.2009 passed by the Commissioner of Central Excise & Service Tax, Allahabad].
Date of Hearing: 18th February, 2011
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial);
Honble Shri Mathew John, 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 Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Rungta Projects Ltd., Appellants
Vs.
CCE, Allahabad Respondent
Present for the Appellant :Shri B.L. Narasimhan, Advocate Present for the Respondent :Shri S.N. Singh, Jt. C.D.R. Coram: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri Mathew John, Member (Technical) FINAL ORDER NO. ________________ Per Ashok Jindal:
By this stay application the applicants are seeking waiver of pre-deposit of service tax, interest and penalty confirmed against them under the category of Cargo Handling Services.
2. Learned Advocate for the applicants submits that demand of service tax have been raised against the applicants on the allegation that the applicants are providing service of Cargo Handling Services to Northern Coalfields Ltd. He further submitted that as Northern Coalfields Ltd. has already discharged the service tax liability on the said activity as service to respondent under the category of GTA service from 2005 onward. The department is again proposing to charge service tax on the activity on which service tax liability has already been discharged. He also submits that on this issue this Tribunal has in several cases already granted unconditional waiver of pre-deposit, and therefore, in this matter the applicants should be granted waiver of pre-deposit of service tax, interest and penalties.
3. Heard and considered.
4. We have gone through the submissions made by learned Advocate and found that in similar set of facts this Tribunal has granted unconditional waiver of pre-deposit in the case of Om Shiv Transport vide stay order No. ST/236/09 dated 1.7.2009 and in the case of the present appellants vide stay order ST/322/09 dated 24.8.2009 wherein this Tribunal has granted unconditional waiver of pre-deposit of service tax, interest and penalty. Following the ratio of the above two stay orders we found that the applicants have made out strong prima facie in their favour. Accordingly, waiver of pre-deposit of service tax, interest and penalties are granted and we stay recovery thereof during the pendency of the appeal.
5. We find that Revenue has also filed Misc. application for early hearing of the appeals as the revenue involved is more than Rs. 8 crores.
6. Considering the submissions made by learned D.R. we found that the amount involved in this matter is more than Rs. 8 crores, and therefore, matter needs to be heard on out of turn basis. Accordingly, we allow applications for early hearing. After waiver of pre-deposit and hearing both sides we found that appeal can be disposed of at this stage. Accordingly, we took up the appeal for final disposal.
7. As admitted by both sides that the Commissioner has not given any finding in the impugned order and have not considered the submissions made by the appellants before him and passed a non-speaking order. Though the order is of 33 pages, the finding of the Commissioner on one of the issues as seen at page 27 to the effect that from the above discussion it is clear that. The discussion seen is just a reproduction of show cause notice and submissions of the assessee. There is no discussion of the issue by the Commissioner. The position regarding the finding on the second issue seen at page 29 of the order is similar. Hence, matter needs re-consideration at the end of the adjudicating authority. As agreed by both sides the impugned order is non-speaking order. We find that it would be proper and in the interest of justice to remand the matter back to the adjudicating authority to pass a speaking order after considering the submissions made by the appellants and after affording reasonable opportunity to the appellants to present their case. Accordingly, appeal is disposed of by way of remand.
(Dictated & pronounced in the Open Court.) (ASHOK JINDAL) JUDICIAL MEMBER (MATHEW JOHN) TECHNICAL MEMBER RK 4