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2016 (11) TMI 62 - CESTAT BANGALORE

2016 (11) TMI 62 - CESTAT BANGALORE - TMI - Taxability - steamer agent service - custom house agent service - extended period of limitation - Held that: - the case have to be remanded back to the original adjudicating authority to re-determine the service tax due within the normal period of limitation after deducting the claims made by the assessee. Even for the period of 2005-06 the demand needs to be reworked by allowing deductions as above. We make it clear that for purposes of allowing said .....

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31-10-2016 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri Joseph Kodianthara, Sr. Advocate For the Appellant Shri Mohammed Yousuf, AR For the Respondent ORDER Per V. Padmanabhan The present two appeals are directed against the Order-in-Original dated 29.2.2008 passed by the Commissioner of Customs, Cochin, in which demands raised under two show-cause notices were finalised. The first show-cause notice covered the demands for service tax for the periods 2000-200 .....

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and leaving all issues open for decision in fresh adjudication means that the said order is not adverse to any of the parties in appeal. Therefore, it is not proper or fair on the part of the Tribunal to have treated any matter as concluded in their earlier order which was an open remand on all issues. 7. So far as the merit of the case is concerned also, we are equally dissatisfied with the orders of the Tribunal because the Tribunal just vacated the orders stating that the adjudication order i .....

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every receipt and expenditure are considered in assessment, it was the duty of the Tribunal to consider in detail the nature of charges collected by the assessee and to see whether those are for taxable services rendered, and if so to sustain it. Similarly if any amount collected is not in the nature of consideration for taxable services, necessarily the same has to be excluded. We are of the view that the Tribunal being the first appellate authority has no escape from considering the matter in .....

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um amounts to observations or restatement of the arguments of the parties. The Tribunal should address all the issues raised against fresh adjudication orders issued after remand. There will be direction to the Tribunal to hear and dispose of the appeals within a period of three months from the date of receipt of a copy of this judgment. The appellant is free to produce whatever is the evidence or records required and is also free to collect information from other collectorates and furnish the s .....

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mbai based on registration obtained at Mumbai under steamer agent services . They are not providing line agency services from Cochin. They have also taken separate service tax registration for custom house agency services for Cochin, Chennai and Mumbai. During the course of audit, it was noticed that the appellants were not paying service tax on the full value shown in the profit and loss account for the period 2001-02 to 2004-05. Show-cause notice was issued and the case was adjudicated confirm .....

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e challenged before the Tribunal in the second round of litigation. The Tribunal in the common order dated 29.6.2009 in paragraph 11 allowed the ground of limitation raised by the assessee against the revised assessment by holding that this finding of the Tribunal has not been challenged by the Revenue. Revenue challenged this Final Order of the Tribunal before the Hon ble High Court of Kerala with the contention that after issuing an open remand order leaving all issues open, the Tribunal shoul .....

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ed by the assessee and to determine whether those are for taxable service rendered and to determine the taxability and pass detailed orders. 4. We have heard both sides in great detail. Shri Joseph Kodianthara, Sr. Advocate appeared on behalf of the appellant and Shri Mohammed Yousuf, AR on behalf of the Revenue. 5. The learned advocate s submissions are summarised below: (i) The appellant has taken centralised registration at Cochin only for steamer agency tramp operation. They have taken regis .....

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Commissioners. The balance sheet and profit and loss account of the appellant is a combined one covering the operations of the appellant in all places. Accordingly he has challenged the demand for service tax by the Commissioner, Cochin on the grounds of jurisdiction to recover service tax for the entire differential income other than that accounted for in Cochin. (ii) For the second demanding covering the period 2005-06, Commissioner has accepted their contention on jurisdiction and has restric .....

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thority, he allowed deduction only to the extent of line agency services , for which service tax liability has been discharged at Mumbai. (iv) Further, he submitted that the total value of services received also includes receipts by way of various expenses incurred by the appellant on behalf of their customers which are reimbursed by the them. Such receipts cannot be considered as part of value of taxable services and merits exclusion as per the settled law on the subject. (v) He also pleaded th .....

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allegations of suppression. However, they have included all receipts properly in their balance sheet and profit and loss account which was available for the Revenue for scrutiny. Under the circumstances no allegation of suppression can be made against them. He also added that the Tribunal in the first round of litigation vide Final Order No.1210/2007 dated 25.10.2007 had in fact accepted their plea of limitation. Accordingly he submitted that the demand should be restricted to normal time limit .....

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country. Accordingly, he submitted that Commissioner, Cochin had the jurisdiction to raise demands for service tax for the entire operations of the appellant all over the country. He further submitted that the ground of jurisdiction has not been raised before the lower authorities and hence should be disallowed. (ii) With reference to the expenses claimed as reimbursable, his argument was that such claims are required to be substantiated with documents and are allowable only after due verificat .....

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see s books of accounts. We find that the entire demand made in the show-cause notice is based on the details found in the books of accounts maintained by the assessee. On perusal of the show-cause notice, we find that no specific grounds have been made regarding how the assessee has indulged in suppression with intent to evade payment of service tax. The entire case has arisen on account of the fact that the assessee s operations are complex and in different parts of the country and could not r .....

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