Karnataka High Court
Commissioner Of Service Tax, vs M/S Yokogawa Blue Star Limited on 9 June, 2010
Bench: N.K.Patil, Aravind Kumar
IN THE HIGH COURT OF KARNATAKA, BANGALORE
BATEB THIS THE 09"' DAY OF JUNE, 2010
PRESENT
THE HON'BLE MR. JUSTICE N K P1"':fi"I'.C'
AND
THE I-ION'BLE MR. JUSTICE"A.RAV'{'fi'i_§" kk
C.E.A. No. 95%;!2CC7
BETWEEN : ' V
COMMISSIONER OE*..SERVICETjTAX;.._
SERVICE TAX CONEM'fSS1Qh?ERA§VE, _
N016, s.RCOMPLEX,;_L.ALBA(3H_R0A;I:),--V_
BANGALORE-560 02.7.. _ ' ' :7 ~ "
TV ...APPELLANT
(By Sri.' Y. my-.'.}
AND: V % M %
.. s~. YOKOGAVWAABLUE STAR LIMITED.
- (Ncnv M/s. YOKOGAWA INDIA LIMITEDJ
. ., _P1__.QTN.Q:~.96, ELECTRONIC CITY, HOSURE ROAD,
'BANC+ALQR;;--560 100.
« 'V ...RESPONDENT
[By"S;.mt. Jamunaram, Adv. for
Sri. K. Parameshwaran, Adv.,)
*****
This appeal is filed U/S. 35(G) of the Central Excise Act, 1944, arising out of order dated 28.12.2006 passed in Final Order Nos. 41/2007 in Appeal No. ST/4,0/2004, praying that this Hon'b1e Court may be pIeas'e_d'»u.to (i) formulate the substantial questions of Iaw stated _vtV1'1='f2_"I'f3i"I1u, (ii) set aside the Order No. 41/2007 dated 28.12.2O06'2i~n_;'Appea1 No. St/40/2004 Passed by CESTAT. "
This C.E.A. coming on for Admissiéon ; KUMAR J , delivered the foliowing: A j. .-June The Revenue is in chalierigingi order passed by the Tribunaii4_[CES_fFiit:l%]vi':in'appeal'1iio.éT/40/2004 vide final order dated pthemfiling of this appeal are as under: V V V 2 it 1 respiontdent is engaged in the services trainingwmto their customers in operating the machines'jn.a1n'eI.y' Distribution Control System manufactured ' _ and 'S.OId_"':b3?::fh€IB. According to the appellant, respondent within the taxable category of " Consuiting ._Er-._gir;eering Service" and had obtained service tax it jhvregiistration. It is contended that respondent has filed a $2 refund claim on 24-6--2003 claiming the refund of service tax amount in a sum of Rs.42,65,93'7/- which had...be:en_ paid under protest. The said refund claim came to be and it was found by the appellant Jthat it wa"s= Hence a show--cause notice was :'§.sst;'1_'ed'iVas-._to _why:'theT1.isaid "
refund claim should not heVf€}.£§cted'- 1V1B*.tof Central Excise Act read with Tax. After considering the respondents, the Deputy Iferrignal No.55 /2003 dated made in the show cause if 2 V 2 respondent fiied an appeal in OIVAuNo:2-4%/'2OQv4 the Commissionersmppeals) who .._by dated A27'--'2x2O04 allowed the appeal, set aside the Commissioner and ordered for refund of thesaid, Aggrieved by the same, the revenue filed appeal before the CESTAT South Zone Bench, in appeal if 40//2004 vide its final order No.41/2007. The ...T{'ibuna1 by its order dated 28-12-2006 rejected the appeal @/ matter was merely consequential to the aforesaid issue?
3. This appeal having admitted on for consideration, the matter was heard at elaborate arguments were addressed by both» .si:d.es;.it--is seen from the perusal of the order dated CESTAT that Tribunal hasl'n'o.t_ proeeleded appeal on merits namely of the respondent as "Consulting at relevant point of time though urged:'The copy of appeal memorandum theiribunal was made available by the learned'cou.nsei*-..:for""the revenue before this Court during the Collurseof his submission and having perused the lfisarné' seen specific ground has been raised with Vdregairdpldtovdthpe taxlability in so far as the services rendered by 2 _ the respondent. This being the factual position, the tribunal yvithout"diNelling upon this core issue has disposed of the by its order of rejection dated 28-12-2006, only on it the ground that the issue in question had been dealt in W JindaI.Vijayanagar Steel Limited which again is the subject matter for consideration in the appeal filed by the revenue before this Court. In View of non--consideration of the-ground urged by the revenue before the Tribunal otherwise of the services of respondent at tnpointu time and this appeal having been;:'adgi_ngitted '}';heV.._ year 5»12~»2007, this Court_*is_ of the""consci»d*ere:dé. tribunal committed an error considieringifgthe ground urged by the appeilant such the order of the Tribunal cannot be sustained atccorfdgtiigly it is set aside. The question.s'Tforrfit:uiated'-by usherein above is answered in favour of the reveitivuetize matter stands remitted to the Tribunal for» consi.dei7_ation and disposal of the same on aecordanceizvith law after affording opportunity to contentions of both the parties are kept openaito before the Tribunal.
is also noticed by us that Section 351) of the Excise Act contemplates the procedure to be foliowed by the Tribunai whereunder the provisions of the W Customs Act under Section 129(C][l)(2)(5] and (6) have been made applicable Whereunder a duty is cast on t.he.l:Trib_unal to consider grounds urged by the parties adjudicated. In View of the fact _that_ appellant having not been corisiciered, considered View that the Aciorisideratiorl afresh on merits by the oaccorldinglgg the matter is remitted to CESTAT;appeal on merits and in accordance_.Vwith_lair: dispose of the matter as but not later than 4 n10nt1"1s?,ifroi1*1'VAV.1A;'V}V;;le of copy of the order. Sd/-7* JUDGE cccccc 14 Sd/J' JUDGE Qsbb/- Q .,