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TMI Blog2014 (2) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/- towards Management, Maintenance or Repair Service during April, 2009 to March 2010 (covered by the 2nd Show cause notice dated 19.10.2010). 3. Several contentions are urged to impeach the validity of the impugned order. Principally however, the challenge is on the ground that the order is perverse since the adjudicating authority failed to advert to, analyse and set out conclusions on specific defences urged by the appellant and those specified in its written submissions, filed in response to the two show cause notices and in the memorandum of written submissions dated 09.07.2013 filed during the adjudication process. This grievance is well founded and this is apparent on scrutiny of the material on record in the appeal. Since non-application of mind to the relevant facts and circumstances; and failure to set out the analysis and reasons the pleadings and contentions has introduced a fatal infirmity in the impugned order, we do not intend to proceed on an independent analyses of the transactions in issue, to consider whether these transactions authorize levy of service tax under the relevant taxable categories qua the relevant provisions of the Finance Act, 1994; despite invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue (in response to Revenue's etter dated 11.5.2010), classifying BAS provided by it between services provided within Indian territory and those provided outside the Indian territory, clearly setting out the gross consideration received under each of these categories, in a tabular format. Similar classification was claimed and set out for MMR services provided i.e. services provided within India and those provided outside Indian territory. In the second show cause notice dated 19.11.2010, in para 3.2 thereof, despite referring to the appellant's letter dated 21.5.2010, in the tabular form set out, the total consideration received by the appellant under BAS is set out (i.e. consideration received for services provided within and outside India). Similarly, with respect to MMR, the show cause notice indicated that tax was remitted in respect of the consideration received on services provided within India but no tax was remitted on consideration received on this service provided outside India (a claim specifically asserted by the appellant. The appellants contention/claim on this (classification) aspect does not find a mention. 7. In reply to the second show cause notice 19.10.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledges replies to the show cause notices, submitted on 17.6.2010 and 25.11.2010. Para 18 of the impugned order sets out the discussions and findings. Para 19 specifically adverts to the defence of the appellant with regard to non-liability to service tax for BAS provided to its associated enterprises on the basis of provisions of the 2005 Rules and that the appellant had relied on several judgments. There is however no analysis of any of the precedents. The Authority adverted to a Board Circular No.111/5/2009-ST, dated 24.2.2009 relied upon by the appellant for its claim that consideration received on BAS provided to its associated enterprises amounts to export of a taxable service and the consideration received therefor in convertible foreign exchange was not liable to service tax. The Authority records at para 20.1 that the appellant had unilaterally stopped remittance of service tax of BAS; did not inform the Department about the same; there was no legislative change bringing about any immunity; and that the appellant was thus clearly liable to service tax. 10. Para 20.1 of the impugned order records an observation that there was no clarification (by the assessee) to support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) in the written submissions dated 09.07.2012, filed with the adjudicating authority. 15. In the adjudication order, the learned Authority has summarised submissions of the appellant and adverted to some of the precedents referred to by the appellant, in paragraph 8 to 17 of the order. The decision of the full Bench in Paul Merchants Limited (specifically mentioned in the written submissions dated 09.07.2013), is however not even adverted to. There is further, no analysis of any of the decisions referred to by the appellant, even of the decisions mentioned in paragraphs 8 to 17 of the order. In paragraph 19.4 the authority concludes that the benefits of Rule 3(1)(iii) read with Rule 3(2) of the 2005 rules would be applicable only if the specified service is provided to a recipient located outside India and used outside India, when provided from India. The full Bench decision of this Tribunal in Paul Merchants Limited, which clearly dealt with identical circumstances and the relevant provisions of the 2005 Rules is neither considered, referred to or analysed in the order. Reliance is however place on Board Circular No. 111/05/2009-ST dated 24.2.2009. 16. The law is well settled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of consideration of the stay application we have indicated that in the facts and circumstances the substantive appeal itself could be heard. We have heard the ld. Counsel for the appellant and the ld. DR for the respondent/ Revenue. We accordingly waive pre-deposit and dispose of the appeal. 20. On the above analysis, the impugned adjudication order dated 31.07.2013 passed by the ld. Commissioner Central Excise (Adjudication) New Delhi in order-in-original No. 13-14/ST/CB/CCE/ADJ/2013 is quashed. The matter is remitted to the adjudicating authority for fresh determination. The respondent shall now pass a fresh order of adjudication, commencing from the stage after receipt of the written submissions dated 09.07.2013 and shall pass a speaking order, de novo. We clarify that this order does not set out any pronouncement on the substantive merits of the case and the respondent/adjudication authority shall record independent conclusions while disposing of the proceedings afresh. 21. This appeal, in the circumstances pointed out was an avoidable litigation and is the result of a fundamental flawed approach of the learned adjudicating authority in passing an ill- reasoned order with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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