Only paid members can access this page.
M/s. McNALLY BHARAT ENGINEERING COMPANY LTD. Versus COMMISSIONER OF SERVICE TAX, KOLKATA - 2012 (4) TMI 177 - CESTAT, KOLKATA - Service Tax
Assessee providing services under the Head, Consulting Engineering Service - SCN issued for default of payment service tax – Assessee has submitted that the Department has determined the Service Tax liability on the gross receipt as shown in their Balance Sheet for the relevant period though they had filed the detailed break-up of the receipts shown in the Balance Sheet - Revenue submitted that the invoices and other documents/evidences against which the amount had been received, by the Appellant were not placed before the learned Commissioner in support of the claim that the services rendered during the relevant period were not consulting engineer services but comprises of various other services and non-taxable services - Held that:- the entire demand has been raised on the basis of the gross receipt shown in the Balance Sheet considering the same as the gross taxable services attributable towards Consulting Engineering Services - we find that besides Consulting Engineering Services , the Appellant are registered with the Department for various other services, which have not been considered by the learned Commissioner in the impugned Order but they have not substantiated by way of adducing relevant documents/evidences before the Commissioner - the matter be remitted back to the Commissioner for re-consideration of all the issues raised earlier and raised for the first time before this Tribunal and also all the evidences/documents relevant to the case
.............. e of adjudication proceeding. Both sides agree that the matter be remitted back to the Commissioner for re-consideration of all the issues raised earlier and raised for the first time before this Tribunal and also all the evidences/documents relevant to the case. In these circumstances, to meet the ends of justice, the matter is remanded to the learned Commissioner for de novo consideration of all the issues afresh. It is made clear that all issues are kept open. Needless to mention that a reasonable opportunity of hearing be afforded to the Appellant in submitting their defence and the Appellant are directed to file their detailed reply to the Commissioner and all relevant evidences within a period of three months from the date of communication of this Order, and the Commissioner should thereafter, decide the matter expeditiously. The Appeal is thus allowed by way of remand. The Stay Petition is disposed of. Operative part of the Order pronounced in the court on 14.03.2012.
SHRI S.K.GAULE, DR. D.M.MISRA, JJ. SHRI BHARAT B. RAICHANDANI ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S) SHRI B.B.AGRAWAL, A.R.(COMMISSIONER) FOR THE REVENUE Per Dr. D.M.Misra This is an Application for waiver of pre-deposit of Service Tax of Rs.18,01,19,044/- and equivalent penalty imposed under Section 78 of the Finance Act, 1994. 2. After hearing for some time, we find that the Appeal itself could be disposed of. Accordingly, after waiving the pre-deposit of the aforesaid dues and with the consent of both sides, we take up the Appeal for disposal. 3. Brief facts of the case are that the Appellant are registered with the Central Excise Department for providing various services under the Finance Act, 1994 including the service under the Head, Consulting Engineering Service . A show cause notice was issued to them on 23.10.2008 alleging that during the period from 2003-04 to 2004-05, though they had provided consultancy Engineering service and received the service charges, but failed to discharge the Service Tax on the said service. On adjudication, the demand of Service Tax was confirmed and penalty imposed by the Ld. Commissioner vide Order No.38/COMMR/ST/KOL/2009-10 dated 23.12.2009. Hence the present Appeal. 4. The Learned Advocate appearing for the Appellant has submitted that the Department has determined the Service Tax liability by taking into consideration the gross receipt as shown in their Balance Sheet for the relevant period. He has submitted that though in the Demand Notice, it has been acknowledged that the Appellant are engaged in the manufacture of plant and machinery and also carrying out the activity on turn-key projects, but while calculating the Demand, the entire receipt shown in the Balance Sheet for the respective years was considered only against the head Consulting Engineering Services . It is his submission that though they had filed the detailed break-up of the receipts shown in the Balance Sheet during the course of adjudication proceeding before the Commissioner, the same was not considered by him while passing the Order. However, he has fairly accepted that the Reply to the Demand Notice furnished by them before the Commissioner do not contain all the issues raised now in their Grounds of Appeal before this Tribunal, namely, on the aspects of applicability of Service Tax under the Head, Consulting Engineering Service , during the disputed period, the correctness of goods and materials deducted from the gross value, etc.. 5. Per contra, the learned AR(Commissioner) appearing for the Revenue submitted that the learned Commissioner has dealt in the impugned Orderthe details of receipts relating to various activities submitted by the Appellant during the course of adjudication proceedings. He has drawn our attention to the grounds raised by the Appellant in the present Appeal before this Tribunal, submitting that the implication of levy of Service Tax on works contract which came in.................