Custom, Excise & Service Tax Tribunal
M/S. Airport Authority Of India vs Commissioner Of Service Tax, Kolkata on 28 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.ST/S/1293/2011
AND
SERVICE TAX APPEAL NO.ST/A/553/2011
(ARISING OUT OF ORDER-IN-ORIGINAL NO.16/COMMR/ST/KOL/2011-12 DATED 29.08.2011 PASSED BY COMMISSIONER OF SERVICE TAX, KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE 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?
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. AIRPORT AUTHORITY OF INDIA
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF SERVICE TAX, KOLKATA
...RESPONDENT (S)
APPEARANCE:
SHRI D.K.DHAR, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S.CHAKRABORTY, A.R.( ASSTT. COMMR.) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:28.11.2013 ORDER NO.FO/A/71143/2013 Per Dr. D.M.Misra This is an Application seeking waiver of predeposit of Service Tax of Rs.53.80 lakh and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.
2. Ld. Advocate for the Applicant, at the outset, submitted that the Applicant is a Government of India Undertaking and is engaged in providing services under the category, Cargo Handling Service and Storage & Warehouse Service, as defined under Section 65(105)(zr) and Section 65(zza) of the Finance Act, 1994. The demand was confirmed against them on the ground that they had received advance deposits towards the services rendered by Cargo Handling Agents in their Predeposit Account, but failed to discharge service tax on the same. The ld. Advocate submitted that for uninterrupted service, Predeposit Account for each CHA has been maintained by them and as and when there is any unutilized amount, that has either been refunded or carried forward to the next year. Further, he has submitted that certain non-taxable services were also included in the present demand. The advance deposits collected from the CHA that were adjusted or carried forward against their liability, has been presented in the form of a statement by the ld. Advocate and submitted before this Tribunal. He has fairly accepted that the said statements were not before the ld. Adjudicating Authority. Further, it is his submission that the ld. Adjudicating Authority had not allowed the reimbursable expenditures which were incidental to the main services i.e.Cargo Handling Services, as deductible under sub-rule (1) of Rule 5 of the Service Tax(Determination of Value) Rules, 2006. It is his submission that the said Rule has been declared ultra vires by the Honble Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India, 2013(29)STR 9(Del.).
3. Ld. AR for the Revenue reiterated the findings of the ld. Adjudicating Authority and has submitted that the documents which are now submitted by the Applicant, were not before the ld. Commissioner. Hence, it could not be verified whether the advance deposits received against the Predeposit Account, were ultimately adjusted against the liability of the respective CHAs or carried forward in future.
4. After hearing both sides for some time, we find that the present Appeal itself could be disposed of, at this stage. Accordingly, after waiving the requirement of predeposit, the Appeal itself is taken up for disposal.
4.1. We find that the demand had been confirmed against the Appellant on the ground that even though they had received the advance deposits from cargo handling agents, but no service tax had been discharged on those deposits, taking into account the said deposits as considerations towards the Cargo Handling Services. However, the claim of the Appellant on the other hand, is that the advance deposits were collected only as a security for rendering quick/prompt service to the customers and adjusted over a period of time in the same financial year or carried forward to the next financial year. However, we find that the said claim of the Appellant could not be supported by evidences during the course of proceedings before the ld. Commissioner. Accordingly, the demand had been confirmed against them. Now, the Appellant has placed a detailed chart along with supporting documents and submitted that the same has been calculated on estimation basis. Both sides agree that this issue needs verification in the light of the documents placed before the Bench, as the same were not either examined or scrutinized by the ld. Commissioner while confirming the demand. In the result, we find that this is an appropriate case to remand the matter to the ld. Commissioner for adjudication afresh, after taking into consideration all the evidences including the evidences placed before us. Needless to mention that a reasonable opportunity of hearing be granted to the Appellant. We make it clear that all issues are kept open. The Appeal is thus allowed by way of remand. Stay Petition also disposed of.
(Dictated and pronounced in the open court.)
Sd/- Sd/-
(I.P.LAL) (D.M.MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
DUTTA/
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ST/A/553/2011
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