Custom, Excise & Service Tax Tribunal
Mysore Sales International Limited vs Commissioner Of Central ... on 8 May, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 20729-20730 / 2014 Application(s) Involved: ST/Stay/28029/2013, ST/Stay/28030/2013 in ST/27671/2013-DB, ST/27672/2013-DB Appeal(s) Involved: ST/27671/2013-DB, ST/27672/2013-DB [Arising out of OIA No.195-2013 dated 16/08/2013 passed by Commissioner of Central Excise and Service Tax (Appeals), LTU BANGALORE ] [Arising out of OIA No.120-2013 dated 10/06/2013 passed by Commissioner of Central Excise and Service Tax (Appeals), LTU BANGALORE ] Mysore Sales International Limited Msil House, No.36, Cunningham Road BANGALORE - 560052 KARNATAKA Appellant(s) Versus Commissioner of Central Excise,Customs and Service Tax BANGALORE-LTU NULL 100 FT RING ROAD JSS TOWERS, BANASHANKARI-III STAGE, BANGALORE, - 560085 KARNATAKA Respondent(s)
Appearance:
Shri N. Anand, Advocate RAVI SHANKAR & CHANDER KUMAR, ADVOCATES 504,4TH FLOOR, OXFORD TOWERS, NO.139, OLD AIRPORT ROAD, KODIHALLI, BANGALORE - 560008 KARNATAKA For the Appellant Shri Ganesh Haavanur, Addl. Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 08/05/2014 Date of Decision: 08/05/2014 Order Per : B.S.V.MURTHY On the ground that the appellants were not eligible for abatement under Notification No.1/2006-ST dt. 01/03/2006 since they have availed CENVAT credit on input services, both the impugned orders have been passed demanding service tax on the abatement portion availed by the appellants.
2. Heard both the sides. The learned counsel submitted that appellants do not provide tour operator service anywhere other than their Delhi Branch and even in their Delhi Branch, they provide only Business Auxiliary Service(BAS) since they are not operating directly as a tour operator but as and when requests are received, entrusts the work to a tour operator who pays service tax on the service. Nevertheless to avoid litigation, they have been paying service tax after availing abatement. He submits that the stand taken by the Revenue that the appellants have availed CENVAT credit is not correct and he relies on the annexure to the show-cause notice which is based on the data provided by the appellants themselves to submit that appellants had not availed CENVAT credit at all.
3. After hearing the learned AR also and on going through the annexure, we find that annexure contains several services like courier service, legal and professional service, internal audit service tec. which prima facie, appear to be common services since the credit has been taken in their head office on these services. The learned counsel submitted that they have not taken credit in respect of services attributable to tour operator service at all. However, prima facie, we find that the appellants have not produced any evidence to substantiate this claim. We take note of the fact that in this case the appellant is claiming abatement as per the exemption notification and burden to show the eligibility to exemption is on the assessee and prima facie other than stating that they have not taken CENVAT credit at all on the input services attributable to tour operator service, the appellants have not shown any documentary or other evidence to support the claim. At this stage, learned counsel submits that appellants may be given another opportunity to submit such evidence/documents. Having regard to the facts and circumstances discussed above, we consider this request is reasonable. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication. It is made clear that we have not expressed any opinion on any of the issues. Further the original adjudicating authority is requested to afford reasonable opportunities to the appellant to present their case before coming to conclusion and passing an order. The appellants are requested to extend full cooperation with the proceedings and avoid unavoidable delays.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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