Custom, Excise & Service Tax Tribunal
K. Jagannadha Reddy vs Commissioner Of Central Excise, ... on 13 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21999 / 2014 Application(s) Involved: ST/Stay/1992/2012 in ST/2733/2012-DB Appeal(s) Involved: ST/2733/2012-DB [Arising out of Order-in-Appeal No. 47/2012 dated 02/07/2012 passed by the Commissioner of Central Excise, Customs and Service Tax, Guntur] K. Jagannadha Reddy, D. No. 20/1019, Flat No.204, Co-Operative Colony, Kadapa (Po) Andhra Pradesh Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax, Tirupati 9/86-A, Behind West Church Compound, Amaravathi Nagar, M.R. Palli 517 502 Andhra Pradesh Respondent(s)
Appearance:
None For the Appellant Mr. N. Jagdish, 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: 13/11/2014 Date of Decision: 13/11/2014 Order Per: B.S.V. MURTHY The appellants have requested waiver of pre-deposit in the written submission on the ground of financial difficulty and further they also pleaded that the appellants undertook only cleaning service but service has been wrongly classified as Manpower Supply Agency service. We take note of the fact that the appellant did not appear for the personal hearing nor did they file reply before the original authority and before the learned Commissioner (Appeals) also a similar submission as observed by us hereinabove were made. The Commissioner also has upheld the original authoritys order on the ground that the assessee did not produce any contract agreement with the service receiver to substantiate revised classification. From the above it is seen that appellants have never defended the case properly at lower levels and since the case has not been defended properly and the issue involves classification of service which in our opinion should have been undertaken after verification of records by the department also, we consider that it would be appropriate that the appellant is given another opportunity to defend their case effectively before the lower authorities. Accordingly instead of granting stay and postponing the decision to a final hearing stage, we consider it appropriate that the matter should be remanded at this stage itself. Accordingly we waive the requirement of pre-deposit and set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision and we request the original authority to call for the copy of the agreement with the service receiver and after considering the submissions that may be made regarding classification, pass a detailed order. We also make it clear that the portions of the decision of the Commissioner which is in favour of the appellant (if any) would be implemented by the original adjudicating authority at the time of passing the order on remand since department has not filed an appeal against the decision of the Commissioner (Appeals).
(Operative portion of the order has been pronounced in open court on 13.11.2014) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER iss