TMI Blog2012 (12) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... iary Service prior to February 2007 and post February 2007 under CHA services. In the absence of any such finding, no conclusion can be reached in the matter. Also in the appellant's own case, the co-ordinate Bench has remanded the matter back to adjudicating authority - in favour of assessee by way of remand. - ST/746/2011 - - - Dated:- 6-9-2012 - MR. M.V. RAVINDRAN, AND MR. B.S.V. MURTHY, JJ. Represented by: Shri Prakash Shah, Adv.: for Assessee. Shri S.K. Mall, A.R.: for the Revenue. Per: M.V. Ravindran: When this Stay Petition is called, on perusal of the records, we find the issue involved in this case is regarding the Service Tax liability under the category of Business Auxiliary Service and Custom Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot correctly classifying the services under the category of Business Auxiliary Service. It is submission that, the adjudicating authority has only collected the figures from the balance sheet, where an amount has been shown as income and worked out the difference by reducing the amount of gross income indicated in Service Tax return and calculated the Service Tax liability, after deducting the Service Tax paid by the appellant, and confirmed the differential demand. It is his submission that in an identical issue, the co-ordinate Bench of the Tribunal at Chennai vide Final Order No.892-893/12, dt.28.8.2012, in the assessee s own case, at the stay stage itself, has remanded the matter in respect of very same assessee. He produces a copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. As against such an admission and also the evidence which is produced by the appellant before the adjudicating authority, we find that the adjudicating authority has only considered all these incomes under the category of Business Auxiliary Service without classifying the same under which category services may fall as per the definition of Business Auxiliary Service prior to February 2007 and post February 2007 under CHA services. We find that in the absence of any such finding, we are unable to come to any conclusion in the matter. We also find strong force in the contentions raised by the ld.Counsel that in the appellant s own case, the co-ordinate Bench has remanded the matter back to adjudicating authority. We find that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch charges. Against the above background, firstly we have evaluated the submissions to assess whether the deposit already made by the applicant is sufficient for the purposes of Section 35F of Central Excise Act. What we find is that the major component of demand to the extent of Rs.27.06 Crores is on account of airfreight charges and ocean freight charges. On this issue, the Tribunal has granted waiver of pre-deposit of dues for admission of appeal for other persons similarly situated. The next major component is in respect of miscellaneous charges brought into tax net under Business Auxiliary Services. This demand is confirmed under Section 65(19)(iv) as it existed prior to 10.09.2004 whereas the proposal in the Show Cause Notice was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in the value of the services on which they have paid Service Tax. Since the applicants understand their accounts and returns better than the Department, it is their duty to explain the figures properly rather than argue that the Revenue has not been able to prove that consideration received is for non-taxable service or that on such consideration received, tax has been paid under other heads. While making submissions for a fresh adjudication, the appellant is directed to make full submissions in this regard. 6. We also like to record that the appellant has failed to extend adequate assistance to the adjudicating authority in giving the entire submissions in proper format which we feel they should be directed to do so. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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