Custom, Excise & Service Tax Tribunal
Zenith (Bangalore) Rollers Pvt. Ltd. ... vs Commissioner Of Customs, Central ... on 9 September, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/660/2011-DB , ST/1566/2011-DB, ST/2008/2011-DB, ST/20545/2014-DB, ST/21322/2014-DB, [Arising out of Order-in-Appeal No. 13/2010 dated 13/08/2010 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad ( Appeals-II) ] [Arising out of Order-in-Appeal No. 05/2011 dated 16/03/2011 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad (Appeals-II)] [Arising out of Order-in-Appeal No. 06/2011 dated 25/04/2011 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad ( Appeals-II) ] [Arising out of Order-in-Appeal No. 224/2013 dated 26/12/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad (Appeals-II) ] [Arising out of Order-in-Stay-Petition No. 24/2014 dated 17/01/2014 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad ( Appeals-II) ] For approval and signature: HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, TECHNICAL MEMBER 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? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Zenith (Bangalore) Rollers Pvt. Ltd. (Now Zenith Rubber Pvt. Ltd.) Plot No. 62-Phase-II, S.V.C.I. E, Balanagar, Hyderabad - 500 037 Appellant(s) Neotech Rubber Products Shed No. S-9, Phase-II, Technocrat Industrial Estate, Balanagar, Hyderabad 500 037 Andhra Pradesh Appellant(s) Neodam Rubber Products Pvt. Ltd. D-45, Phase IV Extn., IDA, Jeedimetla Hyderabad 500 055 Andhra Pradesh Appellant(s) Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV Posnett Bhavan, Tilak Road, Ramkote, Hyderabad 500 01 Andhra Pradesh Respondent(s)
Appearance:
Mr. Rajesh Kumar, CA Hiregange & Associates #1010, 1st floor (Above Corp. Bank) 26th Main, 4th T Block, Jayanagar, Bangalore 560 041 Karnataka For the Appellant Ms. Sandhya, Advocate World Trade Centre No.404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Bangalore - 560 055 Karnataka For the Appellant Mr. Ajay Saxena, DR For the Respondent Date of Hearing: 09/09/2015 Date of Decision: 09/09/2015 CORAM:
HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, TECHNICAL MEMBER Final Order Nos. 21912-21916 / 2015 Per: ARCHANA WADHWA All the appeals are being disposed of by a common order as the issue in all of them is almost identical.
2. The appellants were engaged in the activity of re-rubberisation of old, worn out rubberized rollers. As per the appellant the said activity falls under the category of Business Auxiliary Service, attracting nil rate of duty in terms of an amended Notification, whereas the Revenue has classified the same as Management, Maintenance or Repair Services liable to pay service tax.
3. We find that an identical issue was the subject matter of the earlier order of the Tribunal in the case of Zenith Rollers Ltd. Vs. CCE, Noida [2014 (33) S.T.R. 678 (Tri.-Del.)]. It was observed in the said decision that the activity is equally classifiable under Business Auxiliary Service as also on Management, Maintenance or Repair Services. However inasmuch as the Business Auxiliary Service came into existence before the Management, Maintenance or Repair Service, the same has to be adopted. If that be so the same would be entitled to the benefit of exemption notification. To the same effect there is another decision of the Tribunal in Zenith (Bangalore) Rollers Pvt. Ltd. Vs. CCE, Hyderabad, Final Order No. 21238/2015 dated 26.05.2015.
4. Learned DR agrees that the issue involved is covered by the said decision of the Tribunal. However he submits that in one of the cases the valuation issue is involved but fairly agrees that if the tax liability is nil on account of the classification, the valuation issue would become futile.
5. By following the above decisions of the Tribunal, we hold that the activity undertaken by the appellant falls under Business Auxiliary Service in which case they are exempted from payment of service tax in terms of Notification No. 14/2004. Accordingly the impugned orders are set aside and appeals are allowed with consequential relief to the appellant.
6. However we find that an Appeal No. ST/21322/2014 filed by M/s. Neodam Rubber Products Pvt. Ltd., the same stands filed against a Stay Order of Commissioner (Appeals). Inasmuch as we have held in favour of the assessee on the main issue, we set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits in the light of declaration of law on the classification thereby, without insisting on any pre-deposits. All the appeals are disposed of in the above manner.
(Order pronounced in open court) (ASHOK KUMAR ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss