9911796707
TMI Blog2011 (10) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 to 31.03.2008 along with interest and imposed penalties on the appellants. Stay applications ST/S/66/2011 and ST/AS/67/2011 are in these appeals. 1.1 Appeals No.ST/83/2011 and ST/84/2011 are by the department against the very same impugned orders Nos.53 & 54/2011, dated 25.11.2011 insofar as the same related to the Commissioner dropping parts of the demand proposed by the two show-cause notices. 2. Heard both sides for a while on the stay petition filed by the appellants. Waiver of pre-deposit of dues as per the impugned order was sought for on the ground that the adjudicating Commissioner has not considered the documentary evidence submitted in respect of certain categories of expenses claimed as reimbursement even though the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,1414/- relating to the period 01.01.2007 to 31.03.2008 were issued. Show-cause notices also proposed recovery of interest and imposition of penalties. 3. The assessee contested the demands by filing replies dated 28.10.2008 and 11.11.2008. They were personally heard by the Commissioner on 28.01.2010. They filed vide letter dated 06.02.2010 copies of invoices along with a 'CD' containing the listing of non-taxable invoices. Thereafter, they were again personally heard by the Commissioner on 19.02.2010. 3.4 Due to transfer of the Commissioner who heard the assessee on 28.01.2010 and 19.02.2010 another personal hearing was granted by the newly joined Commissioner on 14.07.2010. After the personal hearing before the present adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority that they are eligible for exclusion of the expenses as "Pure Agent". With regard to the department's appeals, he submits that the Commissioner's findings on expenses under 15 heads allowing abatement are well reasoned and call for no interference. 5. Learned SDR referring to the grounds of appeals, particularly, paragraphs 4.3, 4.4, 4.6, 4.7 submits that the Commissioner has not examined each of the 15 activities separately to consider whether they would merit inclusion in the taxable service of Customs House Agents and expenses are covered by Rule 5 (1) of the Valuation Rules. 6. We have carefully considered the submissions from both sides and perused the records. The Commissioner's order is in favour of the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter and no mark up or margin has been made. * Such reimbursement of expenses were shown separately in the invoice and in each bill, evidence like Bill of Entry No./Container No./Bill of Lading No./Name of the Vessel etc., is available. * It is observed from the nature of services specified that the importer/exporter alone is liable to make payment to the respective service providers i.e., the third parties. * It is seen from the sample purchase order produced by the assessee that these expenses were incurred as per the authorization given by the clients. In the grounds of appeal by the department, there is no specific submission to the effect that any expenses under the above heads do not come under the category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribution expenses 13 Bond charges 14 Second-hand Machinery Assessment Commissioner has held "that though the same may come under the scope of Pure Agent, no supporting documents have been produced by the assessees towards the expenses." The assessee claims that, on the basis of documents already submitted to the Commissioner, they will be in a position to demonstrate that they are eligible for abatement of these expenses and other expenses referred to in para 8 of the Commissioner's order as towards that of "Pure Agent". We find that the documents have been produced by the assessee on different occasions and that there was a change in adjudicating authority and, therefore, possibly there was communication gap in correlating the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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