TMI Blog2014 (9) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of necessary factual basis. If the services were received during the period 2004-2005 and the stand of the Assessee is that no service tax is liable to be paid on the said services and which have been availed of prior to the date of notification or rule coming into force, then, there was some material on record and in the form of at least Audit Report. These documents and in comparison to the contents of the Ledger Account, dates of bills/ invoices should have been considered and thereafter, a proper and complete finding should have been rendered by the Tribunal. We find and repeatedly that the Tribunal in undue haste and uncalled hurry proceeds to pass the orders which have to be often set aside by this Court. This Court has repeatedly reminded the Tribunal that it is the last fact finding authority and which the Assessee and the Revenue approaches so as to have complete adjudication on facts and law. In these circumstances it was bounden duty of the Tribunal to have referred to the findings of the Adjudicating Authority and in their entirety. - Matter remanded back to tribunal - Decided in favor of assessee. - Notice of Motion No.1684 of 2013, Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoices raised by the service provider on the Appellants for the year 2004-2005 and 2005-2006 which indicate the date on which services were provided? (d) Whether in the facts and circumstances of this case, the portion of the impugned order dated 28.05.2013 ignoring the evidence placed by the Appellants in the form of invoices and ledger account to show that services were received prior to 18.04.2006 is correct in law? 3. Mr. Sridharan, learned Senior Counsel appearing for the Appellant/ Assessee, submits that apart from being very brief, the Tribunal in one paragraph reasoning, namely, paragraph 8 of the impugned order, disposed of the Assessee's appeal by a perverse finding. In his submission, the Tribunal has completely overlooked the documentary material on record in holding that there is no evidence by way of agreement or copy of the order placed or any other correspondence to prove that the service was performed prior to 01.06.2007. Mr. Sridharan would submit that the Tribunal failed to take note of the finding in the order of the Adjudicating Authority in which it is categorically held that in this case the service tax is being demanded on payments made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness auxiliary service, etc.. All services are taxable under the Finance Act, 1994 and chargeable to Service Tax under the appropriate classified heads at the rate specified under Section 66 of the Finance Act, 1994. Pertinently, the Audit was carried out and during the course of the audit it was noticed that the Assessee has availed the services, namely, (i) Technical testing and Analysis of goods services and (ii) Design services, in India from the agencies having their establishments outside India and on receipt of services, the Assessee has made payments to them in foreign currency. We are not concerned in this case with the Technical Services and Analysis of Goods Services as the order-in-original grants necessary reliefs and benefits in favour of the Assessee. That part of the order-in-original was appealed by the Revenue, but the Tribunal upheld the order-in-original and dismissed the Revenue's appeal. The Revenue has not brought any appeal before us against that dismissal. 7. We are concerned in this case with the Assessee's cross appeal wherein the allegation was that the Assessee received the services of Maintenance Repairs in India from the Agencies having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis. That we do not find to be the basis in the order of the Adjudicating Authority. In such circumstances the Tribunal was obliged not only to peruse the entire record and consider this issue, but render its findings after scrutiny thereof. We find that there is substance in the arguments of Mr.Sridharan that the Adjudicating Authority as also the Tribunal were aware of the Audit Report and contents thereof. We have been shown a copy of this Audit Report and which is at page 59 of the paper book. We have also been shown the relevant extracts therefrom. In the Audit Report the finding with regard to service tax not paid on testing and design charges reads thus: During scrutiny of Trial Balance for 2008-09 Foreign Remittance Ledger related Vouchers, it has been observed that the assessee had remitted an amount of ₹ 50,66,904/towards Testing Charges to M/s Lear Corporation Technology Centre Allershausen carried out outside the India ₹ 52,09,620/towards Design Charges to M/s Lear Corporation, Dearborn Interior Systems Division, France. Since assessee being recipient of the services performed by foreign based Co. who does not have any office in India, they sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for determination is framed and adjudicated or the ultimate decision and conclusion rests only on the same, then, one can understand a short order being passed. However, when various issues are raised and going to the root of the case, then, the Tribunal is required to apply its mind and to all facets of the matter. Even if a lengthy order is necessitated the Tribunal must not fail to deliver it. Eventually justice is not only to be done, but must be seen to be done. 13. In the present case the only conclusion that is rendered on the Assessee's appeal is to be found in paragraph 8 of the impugned order. That reads thus: 8. We find that in the present case the payment regarding design service was made in 2008-09. The contention is that the service was performed prior to 01.06.2007 i.e. in the year 2004-2005. We find that there is no evidence as to why the payment was made in 2008-2009 in respect of the service received in 2004-2005. There is no evidence on record by way of agreement or copy of order placed or any other correspondence to prove that the service was performed prior to 01.06.2007. In these circumstances we find no infirmity in the impugned order, whereby t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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