Gujarat High Court
Banas Security And Personal Force vs Commissioner Of Central Excise And ... on 10 April, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
O/TAXAP/172/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 172 of 2014
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BANAS SECURITY AND PERSONAL FORCE....Appellant(s)
Versus
COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX....Opponent(s)
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Appearance:
MR PARESH M DAVE with MR KUNTAL PARIKH, ADVOCATES for the
Appellant(s) No. 1
MR YN RAVANI, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/04/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. While issuing notice for final disposal, we had passed following order:-
"1. Draft amendment is allowed.
2. The appellant has challenged an order dated February 15, 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) and further order dated March 15, 2013, under which the appellants request for rectification came to be turned down by the Tribunal.
3. From the said orders, it can be noticed that on February 15, 2013, the appellant had not remained present before the Tribunal, but had sent a request to decide the appeal on Page 1 of 4 O/TAXAP/172/2014 ORDER merits after considering the synopsis and compilation already filed. From such synopsis and compilation, a copy of which was placed on record by the Counsel for the appellant, he pointed out that the appellant had taken an important ground of non-includability of certain amounts in computation of service tax liability of the appellant. In the written submissions, the appellant had submitted inter alia as under :
"2. Valuation of taxable service :
a) As per judgement of the Hon'ble Tribunal, Staff Salary and other infrastructural expenses are to be excluded from the gross amount received for Security Service. This has not been done and, therefore, the service tax calculated is on much higher value. Please refer to the following judgements of the Hon'ble Tribunal :
i)2008(84) RLT 788 (Cestat)- P/23 Malabar Management Services Pvt. Ltd. Vs. CST
ii)2010 (19) STR 270 (T) - P/27 Gujarat Intelligence Security Vs.CCE
iii) 2007 (80) RLT 913 (Cestat) - P/29 S. Jayashree Vs. CCE
3.That the Appellant's firm being a proprietorship firm, cannot be considered as Security Agency, vide Section 65(93) & 65(105) (w), as clarified by the Board in its Circular No.B3/7/2003-TRU dated 21.8.2003 (copy enclosed at P/34), and No.B11/1/2002-TRU dated 1.8.2002 (P/37). Please also refer to the following judgements of the Hon'ble Tribunal :
i.2008-TIOL-282-Cestat P/31 Jagdeep Singh Saluja Vs. CCE ii.2010(96) RLTONLINE 484 (Cestat) P/33 Kannappa Corporation Vs. CCE
4.The Tribunal, on the other hand, dealt with only the question of penalty and did not address to the above issue. Such issue was also raised by the appellant before the Commissioner (Appeals) as is apparent from the Page 2 of 4 O/TAXAP/172/2014 ORDER appeal memo at Annexure-B.
5.Under the circumstances, issue notice for final disposal, returnable on April 10, 2014."
2. From the said order it can be seen that the appellant's grievance is with respect to order dated 15.2.2013 passed by the Tribunal on an application for rectification filed by the appellant. Quite apart from the grievance of the appellant that an important ground/contention raised in written submission was not considered, we notice that the appellant had not remained present before the Tribunal but had merely sent a request letter to decide the appeal on merits after considering the synopsis and compilation already filed. To avoid further complications the counsel for the appellant stated that if the appeal is remanded before the Tribunal for fresh consideration, the appellant would appear in person or through his authorized representative and canvas all available arguments before the Tribunal.
3. Order of the Tribunal dated 15.3.2013 refusing to recall its order in original dated 15.2.2013 is set side. It is further directed that the appeal itself be heard afresh and decided on merits after hearing both Page 3 of 4 O/TAXAP/172/2014 ORDER the sides. For such purpose order dated 15.2.2013 also shall not survive. Tax Appeal is disposed of in above terms with two clarifications however. Firstly, the appellant shall appear before the Tribunal as and when the date of hearing is fixed either in person or through authorized representative and secondly we have expressed no opinion on the merits or demerits of the rival contentions.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR Page 4 of 4