Custom, Excise & Service Tax Tribunal
M/S Bhardwaj Security Services Private ... vs Cce & St, Ghaziabad on 11 September, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL Old Red Building, 38 M.G. Marg, Civil Lines, Allahabad 211 001 COURT NO. II DATE OF HEARING : 11/09/2017. DATE OF DECISION : 11/09/2017. Service Tax Appeal No. 70044 of 2016 (SM) [Arising out of the Order-in-Appeal No. GZB/EXCUS/000/APP/ 0096/15-16 dated 29/09/2015 passed by The Commissioner (Appeals), Meerut II, Central Excise & Customs, Noida.] M/s Bhardwaj Security Services Private Ltd. Appellant Versus CCE & ST, Ghaziabad Respondent
Appearance Shri Rahul Agarwal, Advocate for the Appellant.
Shri Sandeep Kumar Singh, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Final Order No. 71023_/2017 Dated : 11/09/2017 Per. Ashok Jindal :-
The appellant is in appeal against the impugned order wherein the demand of interest has been confirmed and the service tax has been demanded from them.
2. The brief facts of the case are that the appellant got registered themselves under Security Service and Business Auxiliary Service. During the period October 2005 to February 2007 the appellant did not make the payment in time i.e. 5th day of the succeeding month when they received the payment. The demand on account of interest was calculated by calculating the period from the date of issuance of invoice till the date of realization of payment. Therefore, the demand of interest of Rs. 3,04,340/- was raised by issuance of show cause notice. Apart from that, the appellant is providing manpower services to M/s Allied Nippon Ltd., a 100% EOU and intimated to the Department on 29th October 2005 that as they are providing service to a 100% EOU which is located in SEZ area where the service are exempt, therefore, they are not paying service tax on the services provided to M/s Allied Nippon Ltd. As the appellant has provided those services to M/s Allied Nippon Ltd. without payment of service tax, therefore, the demand of service tax was raised for the period 2005-2006 to 2008-2009. The show cause notice was adjudicated, the Adjudicating Authority confirmed the demands against the appellant. The order was challenged before the learned Commissioner (Appeals) who vide order dated 31st January 2012 remanded back to the Adjudicating Authority for correct quantification of interest from 5th day of the succeeding month when they received the payment till the payment of service tax for the intervening period and further, for re-examination and necessary verification of the issue i.e. deposit of tax under the wrong head or accounting code in the light of CBEC under Central Excise Circular dated 20th May 2003. In the remand proceedings, the Adjudicating Authority hold that appellant has not provided full details and have provided only details of October 2005 to December 2006 and not for the whole period for payment of interest and confirmed the demand. On the second issue, he observed that although for the services provided to M/s Allied Nippon Ltd. co-relates payment by them but gone beyond the scope of that and hold as appellant has provided certain exempted services on which they mere required to pay service tax. The said order was challenged before the learned Commissioner (Appeals), the learned Commissioner (Appeals) hold that as appellant has not provided documentary evidence in support of the interest claim and affirmed the order of adjudication. He also did not consider the issue of limitation. Aggrieved from the said order, the appellant is before me.
3. The learned Counsel for the appellant submits that the appellant has provided details of interest for the intervening period i.e. for whole of the period in dispute. It is fact on record but the Adjudicating Authority mainly hold that the appellant has provided details of interest only for the period October 2005 to December 2006. Further, submitted that the Adjudicating Authority has verified that the service tax paid by the appellant co-relates to the services provided to M/s Allied Nippon Ltd. and further hold that appellant has discharged the service tax liability but hold that the appellants are liable to tax on other services which does not form part of the show cause notice, therefore the demand is not sustainable, therefore, the said finding given in adjudication order is not improper. He further submitted that learned Commissioner (Appeals) has not examined the case as per the direction of the remand proceedings by the earlier learned Commissioner (Appeals)s order and have also not considered the issue of limitation. In that circumstances, the impugned order is to be set aside.
4. On the other hand, learned AR supported the impugned order.
5. Heard the parties.
6. Considering the fact that in remand proceedings, the learned Commissioner (Appeals) vide order dated 31/01/2012 the learned Commissioner (Appeals) has remanded the matter to decide the following issues :-
(i) For re-examination and re-quantification of the interest liability on account of the alleged delayed payment of service tax ;
(ii) For re-examination and necessary verification of the issue i.e. deposit of tax/duty under wrong head or accounting code in light of CBE&C Circular dated 20/05/2003 and case law of BAS Engineering (supra).
7. The said issue has not been decided by both the authorities below and refrain to discuss the merits by giving one reason or the other reason, therefore, the impugned order is set aside and the matter is remanded back again to the Adjudicating Authority to re-examine the issue in the light of remand order dated 31st January 2012. The documents which are required for adjudication, the Adjudicating Authority shall give in writing the details of those documents to the appellant and thereafter the appellant shall supply those documents within 7 days to the Adjudicating Authority. Thereafter, the Adjudicating Authority will decide the issue in the frame work of remand directions, as well as with the allegation of the show cause notice. The issue of limitation is kept open for consideration at the end of Adjudicating Authority.
8. In view of the above, the matter is remanded back to the Adjudicating Authority for denovo adjudication as directed.
9. The Appeal is disposed of in the above terms.
(Dictated and pronounced in open court.) (Ashok Jindal) Member (Judicial) PK 5 ST/70044 of 2016