Custom, Excise & Service Tax Tribunal
Gsp Infratech Development Ltd vs Commissioner Of Central Excise, ... on 29 January, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/Stay/26957/2013 in ST/26618/2013-DB Appeal(s) Involved: ST/26618/2013-DB [Arising out of Order-In-Original No. 19/2013 dated 15/04/2013 passed by the Commissioner of Central Excise and Customs, Belgaum] For approval and signature: HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER 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? Yes 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 GSP Infratech Development Ltd. D.No.1672, Pashasite, Behind Saptagiri Lodge, Thorangallu Village, Sandur Taluq, Bellary Dist. 581 123 Karnataka Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax, Belgaum No. 71, Club Road, Central Excise Building, Belgaum 590 001 Karnataka Respondent(s)
Appearance:
Mr. Y. Sreenivasa Reddy, Advocate M/s. QuestCom Consultancy Services, D. No. 8-2-598/A/7, 1st Floor, Road No. 10, Banjara Hills, Hyderabad 500 034 For the Appellant Mr. S. Teli, AR For the Respondent Date of Hearing: 29/01/2015 Date of Decision: 29/01/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER Final Order No. 20219 / 2015 Per: B.S.V. MURTHY Service tax of Rs. 4,25,86,869/- (Rupees Four Crore Twenty Five Lakhs Eighty Six Thousand Eight Hundred and Sixty Nine only) has been demanded from the appellant with interest. Penalty also has been imposed. The demand has been made on the ground that the appellants have rendered Business Auxiliary Service, Site Formation and Mining of Mineral Service.
2. At the outset the learned counsel makes a preliminary objection that the demand has been confirmed without giving service wise breakup and based on the total amount received for the services rendered in their Ledger and Balance Sheet. On the last occasion when the matter was heard, the learned AR was given an opportunity to get a report as to whether the breakup is available and how this has happened. Today when the matter was called, the report was shown to us wherein the learned Commissioner has stated that the offence case was registered by DGCEI, BRU and officers have not quantified service tax demand service wise and party wise. He has also stated that the quantification is on the basis of Balance Sheet and Ledger abstract on year-wise basis.
3. Unfortunately learned Commissioner has forgotten the fact that merely going by the Balance Sheet and Ledger figures to arrive at the service amount received is not correct. More so because many times we have found that Balance Sheet is prepared on accrual basis whereas service tax is levied on receipt basis. In any case for demand of service tax, first of all the nature of services rendered has to be considered, thereafter it has to be examined whether the service is covered by definition of services in the Finance Act 1994 and classified under a particular service category, thereafter it has to be seen what is rate of tax and consideration received and the tax has to be calculated. This is the process to be followed for assessment of tax and in the absence of any assessment by the assessee when the Commissioner proceeds for adjudication this process has to be followed. In the absence of such a process it would not be possible to apply any law and decide the matter. Therefore we find that the preliminary objection raised by the learned counsel is valid and therefore the matter is required to be remanded to the original authority at this stage itself. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority to proceed in accordance with law after giving reasonable opportunity to the appellant to present their case. The Commissioner may provide details service wise and party wise separately and the consideration received and the tax payable before proceeding further. Stay petition as well as appeal gets disposed of in the above manner.
(Order pronounced and dictated in open court) (B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss