TMI Blog2015 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... the Karnataka Power Corporation Limited are reimbursed by the said Corporation. The taxable service is prima facie of supply of coal and the mode chosen for supply is by Railway - Tribunal should have indicated as to how this demand by the adjudicating authority in the order impugned before it is prima facie sustainable, particularly when the argument of the Appellant was that the demand of ₹ 18,45,17,212/- is confirmed after including the freight paid to the Railway in respect of transportation of coal. Unless and until the Tribunal could have sustained this part in the adjudication order with reference to a specific legal provision, it was not justified in imposing a condition of 25% of the above sum to be deposited. There is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is condition of pre-deposit and stay of recovery of the demand was made. We are on the application of this nature and therefore we are confining our observations and conclusions, which are in any event tentative and prima facie, for the purpose of disposal of this application. Our order passed today shall not be construed as expression of any final opinion and on the merits of the Appeal. The Appeal shall be decided on its own merits and in accordance with law. 4 The adjudicating authority in terms of the Tribunal s order, confirmed the demands of ₹ 43,13,176/-, ₹ 15,85,894/-, ₹ 51,535/-, ₹ 5,36,72,025/- and ₹ 32,09,061/-. After hearing Mr. Sridharan appearing for the Appellant and Mr. Jetly appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Railway Freight paid by the Appellant on behalf of the Karnataka Power Corporation Limited and claimed as reimbursement. 7. In relation to that we have perused paras 9 and 20 of the Tribunal s order. We have also perused the relevant definition and of the term taxable service as appearing in the Finance Act. The taxable service and rendered in taxable territory, which is provided or to be provided, that is brought within the purview of this enactment. The Tribunal ought to have indicated at least prima facie as to how in this case the Railway Freight and which is charged by Railway for transportation of coal from the mines to the destination, namely Karnataka Power Corporation Limited could be brought to tax even if the expenses by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, while granting partial waiver in the facts and circumstances, the Tribunal was obliged to take into account and consideration the plea of the Appellant/Applicant as raised in para 9. We do not find any discussion on that count in para 20 of the order under challenge. The argument could not have been dealt with, without reference to the terms and conditions of the agreement between the Appellant/Applicant and the said Karnataka Power Corporation Limited. In such circumstances, we are of the opinion that this part of the order passed by the Tribunal cannot be sustained. It will have to be quashed and set aside. 8. Accordingly, the Appeal succeeds in part. The direction to deposit ₹ 32,09,061/- is maintained. The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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