Custom, Excise & Service Tax Tribunal
M/S Bharti Hexacom Ltd vs Cce, Jaipur I on 15 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 15/11/2016. DATE OF DECISION: 15/11/2016. Service Tax Appeal No. 669 of 2011 [Arising out of the Order-in-Original No. 6/2011 (S. Tax) Commissioner dated 27/01/2011 passed by The Commissioner, Central Excise & Customs, Jaipur I.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 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 would 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 : Department Authorities? M/s Bharti Hexacom Ltd. Appellant Versus CCE, Jaipur I Respondent
Appearance Shri Manish Gaur, Advocate for the Appellant.
Shri Sanjay Jain, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 55137/2016 Dated : 15/11/2016 Per. Ashok Jindal :-
The appellant is in appeal against the impugned order. The facts of the case are that the appellant is registered with Service Tax Department under the category of telephone services. During the period 16/08/2002 to 14/05/2003 the appellant availed the Cenvat credit of Rs. 66,61,582/- for rendering output services under the category of telephone services for input services namely leased circuit services. The case of the Revenue is that during the relevant period the assessees entitled to take Cenvat credit for the output service which have been provided by them as they have taken Cenvat credit on lease circuit services and providing telephone services, therefore, they are not entitled to take Cenvat credit of these services. Further a demand of service tax of Rs. 8,57,850/- sought to be demanded on account of inclusion of value of sim-card sold by the appellant during the impugned period. The matter was adjudicated and demand on both the grounds were confirmed thereafter the matter was travelled up to the Tribunal and the Tribunal remanded back to the learned Commissioner with the following directions :-
5. On perusal of the impugned order of the Commissioner, we find that there is no discussions on the above issues as raised by the learned Advocate. We also find force in the submission of the learned Advocate that demand of tax for the period 16/08/02 to 14/05/03 vide show cause notice dated 19/11/2004 is barred by limitation. In our view, all these issues are required to be examined by the Commissioner. Hence, we set aside the impugned order and the matter is remanded back to Commissioner to decide afresh after considering the submissions of the appellant and to examine the evidence. The appeal is allowed by way of remand. It is made clear that all the issues are left open in denovo proceeding.
2. In remand proceeding despite the direction of the Tribunal, the Adjudicating Authority has not considered all the points raised before this Tribunal in true spirit, but passed the impugned order. Aggrieved from the said order, the appellant is before us.
3. The learned Counsel for the appellants submits that the appellant is having good case on limitation and in earlier round of litigation, the matter was remanded back to the Adjudicating Authority to consider the issue of limitation but the Adjudicating Authority did not comply with the direction of the Tribunal and have not considered the issue of limitation as contested by the appellant and relied on his own earlier order on this issue. Therefore, the issue of limitation is required to be decided by this Tribunal. On limitation, he submits that the appellant had filed his regular Cenvat credit returns showing the nature of service on which they have taken Cenvat credit and this fact was in the knowledge of the Revenue, therefore, extended period of limitation is not invokable. On the issue of sim-card he submit that issue of value of sim-card to be included in the taxable service was finally decided by the Apex Court in Idea Mobile Communications Ltd. vs. CCE & Cus., Cochin reported in 2011 (23) S.T.R. 433 (S.C.), as the issue of leviability of service tax was in dispute in that circumstances extended period is not invokable.
4. On the other hand, learned AR submitted that as the Adjudicating Authority has not followed the direction of this Tribunal therefore the matter be remanded back to the Adjudicating Authority.
5. Heard the parties considered the submissions.
6. This is the second round of litigation. In the earlier round of litigation this Tribunal directed the Adjudicating Authority to decide the issue of limitation but the same was not considered. As the facts and records are available before us, therefore, we are having the privilege to decide the issue of limitation. As admitted that the appellant had filed Cenvat credit returns regularly and the same was received by Revenue and in the knowledge of the Department, therefore, the show cause issued for invoking extended period of limitation is not sustainable.
7. We also find that on the issue of valuation on account of sim-card was also being dispute and the same was decided by the Apex Court in Idea Mobile Communications Ltd. (supra), therefore, extended period of limitation is not invokable during the impugned period.
8. As we have hold that the show cause notice cannot be issued by invoking extended period of limitation, therefore, whole of the demand against the appellant is set aside. Consequently the appeal is allowed by setting aside the impugned order with consequential relief, if any.
(Dictated and pronounced in open court.) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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