Custom, Excise & Service Tax Tribunal
M/S Venu Enterprises vs Commissioner Of Service Tax, Bangalore on 29 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL BANGALORE Final Order No. 21822 / 2014 Application(s) Involved: ST/Stay/20840/2014 in ST/20760/2014-DB Appeal(s) Involved: ST/20760/2014-DB [Arising out of the Order-in-Appeal No. 777/2013 dated 24/12/2013 passed by Commissioner of Central Excise (Appeals-II), BANGALORE] M/s Venu Enterprises #1, M.M. Complex, 3rd Floor, Opp. Pushpanjali Theatre, Dinnur Main Road, R.T. Nagar, BANGALORE - 560032 Appellant(s) Versus Commissioner of Service Tax, Bangalore 1ST TO 5TH FLOOR, TTMC BUILDING, Above BMTC BUS STAND, DOMLUR BANGALORE 560071. Respondent(s)
Appearance:
Mr. M.A. Narayana, Advocate CUSECS CONSULTANTS FLAT 'A' GR.FLOOR, "SEVEN HILLS EXCELLENCY", #33, 2ND CROSS, SBM COLONY, BRINDAVAN NAGAR, MATHIKERE, BANGALORE 560054 For the Appellant Mr. N. Jagdish, A.R. For the Respondent CORAM :
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER ________________________________________ Date of Hearing: 29/09/2014 Date of Decision: 29/09/2014 Per B.S.V. MURTHY At the outset, learned counsel submitted that the impugned order is not a speaking order. He submitted that gist of submissions made and finding recorded by lower authorities which according to him shows that all the submissions made by him have not been considered and principles of Natural Justice have not been followed. For a better appreciation, we reproduce the submission made in writing by learned counsel, herein below :
Sl. No ISSUE INVOLVED DEFENCE SUBMITTED FINDINGS OF ORIGINAL AUTHORITY FINDINGS OF 1ST APPELLATE AUTHORITY I Inclusion of the wages component paid by the recipients of service in the taxable value of the manpower supply services rendered by the appellant. Tax involved Rs. 14,24,727/- The appellants activity is governed by the provisions of Contract Labour (Abolition & Regulation) Act, 1970. As per the ratio laid down by the Hon'ble Supreme Court in the case cited in the reply, the appellant is acting only as a pure agent of the principal employers in so far as it relates to the receipt of wages component and hence the wages component is not includible in the taxable value of the services in the light of Rule 5(2) of the Service Tax Valuation Rules 2006. No findings recorded against this submission. The whole amount is confirmed based only on the clarification issued by the Board, which apparently is not applicable in the facts and circumstances of this case. No findings recorded against this submission. Ostensibly proceeding as though the dispute is about the classification of service and not valuation of service. Ordered for deposit of whole amount II Non-payment of service tax in respect of cleaning and maintenance services rendered to M/s. BEL.
Tax involved Rs. 8,50,254/- The appellant had undertaken various types of activities as per the contract. Not all contracts were covered under the category of cleaning services. Each contract was discussed in detail and wherever the tax was possibly payable under the category of manpower supply services was paid. There is no finding recorded on any of the activities covered under various contracts as to why the detailed submissions made therein were not acceptable. Simply held that all the activities were covered under the category of cleaning services. Even the activity like sweeping the road in the residential areas of the BEL quarters is treated as covered under cleaning services, which apparently is not as per law. No specific finding against each contract. Reiterated the findings of the original authority. Ordered for deposit of whole amount III Interest on delayed payment of tax on several occasions. Tax involved Rs. 1,99,700/- It was demonstrably explained as to no delay in payment of tax on several occasions mentioned in the work sheet with specific provisions of law. In fact, the assessee has paid the tax well in advance on many occasions. No finding recorded. Simply held that the worksheet is properly prepared and the interest was payable, ignoring the fact that the appellant being a proprietary concern, had paid the tax in many cases even before the due date available to him in law. No findings at all. Ordered for deposit of whole amount IV Non-payment of tax on alleged manpower supply services in the case of M/s. Tumkur Milk Dairy. Tax involved Rs. 2,88,597/- As detailed in the reply to show cause notice, this is an activity of cleaning of machineries in the diary and the same was specifically excluded from the purview of tax under the category of cleaning services and the client had not paid the tax element on this ground. Further, the appellant accepted the departments contention about the classification of this activity and paid the tax as per law in the light of the submissions contained in Sl.No. I above. Not a single word of finding recorded in respect of this demand. Simply confirmed the amount in the order portion. No findings recorded. Ordered for deposit of whole amount V Penalty imposed under Sections 77, and 78 Rs. 5000/- + Rs. 30,00,000/- It was submitted that there was no malafide intention. The tax as demanded could not have been paid by the appellant unless the same was paid/ reimbursed by the service recipients. The impossibility of payment of demanded tax element was demonstrated with facts and figures. No findings recorded. Even the demonstrated impossibility for the appellant to pay the tax on wages component when not paid by the service recipients is not considered pragmatically. No findings recorded. Ordered for deposit of 50% of the amount
2. After hearing both sides during which arguments were advanced in great detail, we consider that the submissions made by learned counsel on behalf of the appellant that non-appreciation of facts and evidence has some validity and therefore, we consider it appropriate that we remand the matter without recording our opinion on the issues involved. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration of all the issues involved and detailed recording of facts and circumstances and conclusions in accordance with law. Needless to say that the appellant shall be given reasonable opportunity to present their case before the matter is decided.
(Operative portion of the order has been pronounced in open court) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER /vc/