Custom, Excise & Service Tax Tribunal
Icomm Tele Limited vs The Commissioner Of Customs, Central ... on 22 November, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Stay Application & Appeal No: ST/Stay/526/2009 in ST/866/2009 (Arising out of Order-in-Original No. 11/2009-ST-ADJN-HYD-III-ADJN.-COMMR. dated 30.07.2009 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad-III Commissionerate) 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? No 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes ICOMM Tele Limited Appellant Vs. The Commissioner of Customs, Central Excise & Service Tax Hyderabad-III Commissionerate Respondent
Appearance Shri V.J. Sankaram, Advocate, for the appellant Shri D.P. Nagendra Kumar, JCDR, for the respondent CORAM MR. M.V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) MR. P. KARTHIKEYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing:22.11.2010 Date of decision:22.11.2010 STAY ORDER No._______________________2010 FINAL ORDER No._______________________2010 Per M.V. Ravindran (Oral) This stay petition is filed for the waiver of pre-deposit of the following amounts:-
(i) Service Tax: Rs. 2,47,67,853/- along with interest u/s 75
(ii) Penalties: (a) Rs. 200/- per day u/s 76; (b) Rs. 1,000/- u/s 77 and (c) Rs. 2,47,67,853/- u/s. 78
2. Heard both sides and perused the records.
3. After hearing both sides for sometime on the matter, we find that the appeal itself could be disposed off at this juncture as it lies in a narrow compass. Accordingly, the application for the waiver of pre-deposit of the amounts involved is allowed and appeal itself is taken up for disposal.
4. The demand of the differential Service Tax has arisen on the ground that the appellant in this case has wrongly availed the benefit of Notification Nos.19/2003-ST dated21.8.2003 and 01/2006-CE dated 01.03.2006.
5. The case of the Revenue is that the appellant is not eligible for the benefit of abatement of 67% as he has not included in the gross amount charged from the recipient of the services the value of the plant, machinery, equipment and fixtures as parts, as the appellant is only doing services of erection, commissioning, installation by using materials like cements, cables, etc.
6. The learned Counsel submits that he has demonstrated before the adjudicating authority regarding the usage of the materials in providing the said services. He would draw our attention to the paragraphs 8 wherein the adjudicating authority has recorded a finding that the appellant has paid Sales Tax/VAT in rendering the services.
7. The learned JCDR would submit that the Notification talks about the gross amount charged, which should include the value of the materials, plant and machinery, equipment and structures and other materials sold.
8. On a careful consideration of the submissions made and on perusal of the OIO, we find that the adjudicating authority has not given any findings as regards the plea raised by the appellant regarding the submission of Sales Tax and VAT returns and discharge of Sales Tax and VAT on the value of materials consumed during the providing of services. We also find that the appellant has taken a plea before the Commissioner regarding the taxability of the services.
9. Since the issue requires factual verification of the records, without expressing any opinion on the merits of the case, we set aside the impugned order. Keeping all the issues open, we remand the matter back to the adjudicating authority to re-consider the issue afresh after following the Principles of Natural Justice. The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority. The stay application also stands disposed off.
(Pronounced and dictated in open Court) (P. KARTHIKEYAN) Member (T) (M.V. RAVINDRAN) Member (J) /pr/