Custom, Excise & Service Tax Tribunal
M/S. Sea Wings Logistics Pvt.Ltd vs Commissioner Of Service Tax, Kolkata on 11 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-70855/13
&
Appeal No.S.T. 70831/13
(Arising out of Order-in-Original No.01/Commr/ST/Kol/2013-14 dated 17.04.2013 passed by the Commissioner of Service Tax, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
HONBLE DR. I.P. LAL, 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 should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Sea Wings Logistics Pvt.Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Service Tax, Kolkata
Respondent (s)
Appearance:
Shri S.K.Goyal, C.A. & A.Tibriwala, C.A. for the Appellant (s) Shri A.Roy, Supdt.(A.R.) for the Respondent (s) CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical) Date of Hearing:- 11.05.2015 Date of Pronouncement :- 11.05.2015 ORDER NO.FO/A/75255/15 Per Dr. D.M. Misra.
1. This is an application seeking waiver of pre-deposit of service Tax of Rs.1.25 Crores and equal amount of penalty imposed under section 78 of the Finance Act, 1994.
2. Narrating the facts Shri S.K.Goyal, ld.C.A. for the Applicant submits that the service tax demand has been confirmed against two categories, namely Management Consultant Service and Customs House Agent service alleged to have been received from overseas consultants and CHAs during the period from 2006-07 to 2007-10. The ld.C.A. submitted that they have not received the management consultant service from the overseas service provider. It is his contention that erroneously the amount of Rs.9,77,04,548/- was shown in the additional information submitted with Balance Sheet as f professional/consultant fees. The Ld. CA submitted that the same was a typographical error and they have not spent any foreign currency towards receipt of the said professional/consultancy from the overseas service provider. On discovery of the mistake, the applicant have approached the Registrar of Companies for correction of the said mistake and according to the advise of ROC, they have amended their balance sheet in the Extraordinary General Meeting held on 18.4.2011. Regarding confirmation of the demand on the amounts spent towards CHA service, the ld.C.A. submits that the said services were received by them from the overseas service provider not in India, but outside India, therefore not liable to service tax in view of the provisions of Rule 3(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. The ld.C.A. further submits that even though they have led sufficient evidence before the Commissioner in support of their claim, the same was not considered. Now, they have procured the Chartered Accountants certificate dated 18.12.2014 in support of their claim that the figures shown against Clause-(b) Sl.No.(ii) of the report annexed to the balance sheet dated 31.3.2009 was a mistake and in support enclosed all relevant ledgers to show that no such amount in foreign currencey had been paid by them.
3. The ld.A.R. for the Revenue reiterated the findings of the ld.Commissioner. He submits that the certificate along with documents/ledgers now produced by the appellant were not before the Ld. Commissioner, therefore, the same need to be scrutinized afresh to examine the claim of the appellant.
4. After hearing both sides for some time we find that the appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for disposal.
5. We find that the major portion of the demand relate to receipt of foreign consultancy service from the overseas service provider. The said allegation is based on the basis of an entry made in the additional information submitted along with the balance sheet. In the said additional information it has been shown an amount of Rs.9,77,04,548/- spent towards professional/consultancy fees. It is the claim of the appellant that it was a typographical error and they have not spent any such amount in receiving professional/consultancy fees from overseas. In support they have earlier produced certain evidences and now produced a C.A. Certificate dated 18.12.2014 along with the ledgers. Further, it is the claim of the appellant the alleged CHA services received by them from oversea service providers were relating to the services outside India as they them selves are CHA service providers in India, hence such services are not covered under the scope of Service Tax levy. However, the Ld. CA fairly submits that necessary evidences could not placed before the ld.Commissioner to substantiate their claim. The ld.C.A. submits that they are now in possession of all necessary documents/evidences to justify their claims. In these circumstances, in the interest of justice, we are of the view that the matter be remitted to the ld.Commissioner for examination/ scrutiny of evidences that would be produced by the appellant relating to both allegations. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Appeal is allowed by way of remand. Stay Petition disposed of.
(Pronounced and dictated in the open court.) SD/ SD/ (I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 4 Appeal No.S.T.70831/13