Custom, Excise & Service Tax Tribunal
M/S. Andhra Pradesh Meat Development ... vs Cce, Hyderabad on 2 April, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:02/04/2013
Date of decision:02/04/2013
Application No.ST/COD/187/2012; ST/Stay/2386/2012
Appeal No.ST/3288/2012
(Arising out of Order-in-Appeal No.99/2012(H-II).S.Tax dt. 27/06/2012 passed by Commissioner(Appeals), Hyderabad)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. B.S.V. Murthy, 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?
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. Andhra Pradesh Meat Development Corporation Ltd.
..Appellant(s)
Vs.
CCE, Hyderabad
..Respondent(s)
Appearance Mr. N. Anand, Advocate for the appellant.
Mr. S. Teli, Deputy Commissioner(AR) for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] The appeal is delayed by 21 days, for which sufficient cause is forthcoming. The COD application stands allowed.
2. The second application filed by the appellant seeks waiver of predeposit and stay of recovery. After hearing both sides, we find that the appeal itself is fit for summary disposal. Accordingly, after dispensing with predepsoit, we take up the appeal.
3. This appeal is directed against the appellate Commissioners order dismissing the assessees appeal filed against an adverse order of the original authority, on the sole ground of non-compliance with Section 35F of the Central Excise Act read with Section 83 of the Finance Act, 1994. In a show-cause notice dt. 13/09/2010, the Department had examined the nature of activity of the appellant and proposed to classify it under Support Service of Business or Commerce [Section 65(105)(zzzq) of the Finance Act 1994] in terms of Section 65A of the Act after observing that the description under this service appear to be more specific than the one under Renting of Immovable Property service. The show-cause notice demanded an amount of Rs.14,52,300/- towards service tax and education cesses on the aforesaid activity classified as Support Service of Business or Commerce. It also proposed penalties on the assessee apart from demanding interest on service tax etc. These demands were contested. The adjudicating authority chose to classify the service under Renting of Immovable Property service, and confirmed the above demand on quantitative terms. Aggrieved by the Order-in-Original, the party preferred an appeal to the Commissioner(Appeals) and also applied for waiver of predeposit. The appellate authority required them to predeposit 50% of the aforesaid amount, which was not deposited. On the date appointed for report of compliance, the appellate authority found no evidence of predeposit and hence dismissed the assessees appeal in the aforesaid manner. Hence the present appeal of the assessee before us.
4. After hearing both sides, we find that a similar factual situation in the case of the same assessee for an earlier period came to be considered by this Bench and waiver of predeposit and stay of recovery granted to the appellant on the ground that the adjudicating authority had travelled beyond the scope of the show-cause notice as in the instant case vide Stay Order No.792/2012 dt. 14/05/2012. The learned Deputy Commissioner(AR) has acknowledged the cited Stay Order. We have found prima facie case for the appellant. The learned Commissioner(Appeals) ought not to have required any predeposit. In this view of the matter, we set aside the impugned order and allow this appeal by way of remand with request to the learned Commissioner(Appeals) to dispose of the assessees appeal against the Order-in-Original on merits without insisting on any predeposit and in accordance with law after giving them a reasonable opportunity of being heard. The stay application also stands disposed of.
(Pronounced and dictated in open court) (B.S.V. MURTHY) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4