TMI Blog2018 (1) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, as is erroneously understood in the order under appeal. - Be that as it may, both aides agree before us that for this limited extent, the matter should go back to the tribunal itself and need not be sent to the adjudicating authority. The assessee would rely on those very materials, which were before the adjudicating authority and forming part of the paper book or records before the tribunal and nothing more. On these materials itself, the assessee would be able to convince the tribunal that the segregation or requantification, as prayed should be made. If this is how the matter is understood by the assessee, then, we see no justification for remanding the matter to the adjudicating authority. We set aside that part of the order, which we have reproduced above i.e. para 6.5 and the ultimate direction in para 6.7 with regard to liability of the appellant to pay service tax post 15th June, 2005 and direct that even if the said service attracts tax and which is admissible and payable, its computation be done afresh in accordance with law - Matter remanded back before the tribunal. - Central Excise Appeal No. 237 of 2016 - - - Dated:- 16-1-2018 - S. C. DHARMADHIKARI SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding is on mixed questions of fact and law and peculiar to the assessee's case, we do not deem it proper to disturb it. It cannot be said to be wholly perverse or vitiated to such an extent as would enable us to frame a substantial question of law for admission of this appeal. We clarify that the appeal stands dismissed to the extent of question no. (iii) at page 16 of the paper book. 4. However, we would dispose of this appeal finally on the above two admitted questions for the simple reason that the assessee before us is engaged in the business of manufacture of excisable goods falling under Chapter Heading 8504 of the Schedule to the Central Excise Tariff Act, 1985. Apart form manufacturing activity, the appellant also undertakes repairing of electrical transformers manufactured by them. For the repair service rendered by them, in respect of electrical transformers manufactured by them and received for repairing from their customers from time to time, the appellant is registered with the Service Tax Department under the head Maintenance and Repair Service and under Commissioning and Installation Service and paying appropriate service tax. 5. Then, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis in terms of the provisions of Rule 6 of the Service Tax Rules, 1994. The service tax paid under this head was to the tune of ₹ 1,34,05,568/-. That is over and above the amount of service tax already paid and considered in the show cause notice. It is in these circumstances, the dispute was raised to the demand in the show cause notice, but, what transpires is that the show cause notice dated 25th May, 2007 demands from the appellant a sum of ₹ 2,37,52,286/- along with interest and penalty on the activity of repairing of transformers done under rate contract during the period 1st July, 2003 to 31st March, 2006. It is that show cause notice, which was adjudicated by the order-in-original dated 9th February, 2012. The relevant part of the order-in-original reads as under:- ORDER i) I confirm the demand of ₹ 2,34,10,538 and education cess amounting to ₹ 3,41,748 totally amounting to ₹ 2,37,52,286/- (Rupees two crores thirty seven lakhs fifty two thousand two hundred eighty six only) raised vide Show Cause Cum Demand Notice No. ST/Mum/Div-VI/MRS/AVAL/EA-2000/SCN-06/2007 dated 25th May 2007 against M/s. Aditya Vidyut Appliances Limited under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the service tax liability under maintenance or repaid services post 15.6.2005 needs re-quantification. Upholding the demand of service tax liability and the interest thereof for the period post 15.06.2005, we remit the matter back to the adjudicating authority to reconsider the limited prayer of the appellant regarding the cost of the material that needs to be reduced from the value on which tax liability is due. Appellant is also required to discharge the interest on requantification of tax liability. 9. It is with regard to this finding that Mr. Patil joins issue with the tribunal. He would submit that the appellant had argued in details and even placed relevant materials, which are on record of the case. The tribunal should not have remanded the matter for its own observation and conclusion is that it casually perused the invoices. Mr. Patil would submit that the remand was not necessary at all. He would submit that if the demand itself was not sustainable and on the grounds which are mentioned in the grounds of appeal, duly highlighted, then, there was nothing to be remanded and for re-quantification. The appellant had pointed out that the value of parts/materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, in respect of other manufacturers of transformers, would not be covered under the Maintenance or Repair Service as the definition says, it is restricted to undertaking maintenance or repair work under maintenance contract. Apart therefrom, the argument was that no maintenance contract was entered into by the appellant with the State Electricity Board. Then, the change in the definition post 15th June, 2005 was referred and it was urged that tax liability may arise from that date and which has been discharged, but the demand raised in the show cause notice and confirmed by the adjudicating authority includes various material cost which was used while undertaking repairs during the period 16th June, 2005 to 31st March, 2006, which requires re-quantification. 13. Various facets of that aspect were highlighted in the grounds of appeal itself, but the tribunal understood it as only a limited request and for re-quantification. We do not see how the tribunal could have concluded that a casual perusal of the invoices produced before it indicates that the appellant assessee has charged separately for the material consumed and for the service of the repairs of transfor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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