Custom, Excise & Service Tax Tribunal
M/S. Cochin Shipyard Ltd vs Commissioner Of Central Excise on 22 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE SOUTH ZONAL BENCH COURT - I Stay Application No. ST/Stay/509/2009 in Service Tax Appeal No: ST/837/2009 (Arising out of Order-in-Original No: 21/2009/ST dated 20.7.2009 passed by the Commissioner of Central Excise, Customs & Service Tax, Cochin.) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes M/s. Cochin Shipyard Ltd. Appellant Versus Commissioner of Central Excise Cochin. Respondent
Appearance Mr. P. Gopinath Menon, Advocate for the appellant.
Mr. Ganesh Havannur, Addl. Commissioner (AR) for the Revenue.
CORAM HONBLE MR. JUSTICE G. RAGHURAM, PRESIDENT HONBLE MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing: 22.05.2013 Date of decision: 22.05.2013 FINAL ORDER No._______________________2013 [Order per: B.S.V. Murthy]. The assessee was procuring orders for supply of vessels to customers through foreign brokers and paid brokerage/commission to such brokers and had not discharged the service tax liability on such commission as a receiver of service. Taking a view that under Section 66A of the Finance Act, 1994, the appellant was liable to discharge service tax, proceedings were initiated for recovery of service tax on such brokerage paid by the appellant during the period from 1.1.2005 to 30.09.23007. In the impugned order, service tax of Rs.1,61,44,937/- has been demanded and penalties under various sections of Finance Act, 1994 have been imposed and interest on the service tax has also been demanded.
2. The learned advocate for the appellant submitted that in view of the decision of the Honble Bombay High Court in the case of M/s. Indian National Shipowners Association vs. CCE: 2009 (13) S.T.R. 235 (Bom.) upheld by the Honble Supreme Court, the appellant was not liable to pay service tax prior to 18.4.2006. As regards the period subsequent to 18.4.2006, he submits that appellant has already paid an amount of Rs.40,06,412/- with interest, which in their opinion is more than their service tax liability.
3. After considering the submissions, we find that this is a fit case for final disposal at this stage itself. Accordingly, we waive the requirement of pre-deposit and take up the appeal for decision.
4. We find ourselves in agreement with the submissions made by the learned counsel. The CBEC has also issued instruction vide F.No.276/8/2009-CX dated 26.9.2011 citing the decision of the Honble Bombay High Court and instructing field formations that service tax liability need not be discharged by the receivers of service from foreign service providers for the period prior to 18.4.2006 in terms of Section 66A of the Finance Act, 1994. However, as regards the liability for the period subsequent to 18.4.2006, the appellants are disputing quantum of service tax payable by them. Under these circumstances, we find that the matter requires to be remanded to the original authority for re-quantification of the demand for the period subsequent to 18.4.2006. In view of the above discussion, the matter is remanded to the original adjudicating authority for re-quantification of the service tax liability of the appellant for the period subsequent to 18.4.2006. Stay application also gets disposed of.
(Pronounced and dictated in open Court) (G. RAGHURAM) President (B.S.V. MURTHY) Member (T) rv 2