9911796707
TMI Blog2018 (8) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court given in case no. MIL India Ltd. vs. CCE [2007 (260) ELT 188 (SC)], is under challenge in this appeal. 2. Factual backdrop of the case, as revealed from the appeal paper book, is that audit report concerning audit of the appellant company made for the period between July 2012 and September 2014 indicated that manpower service was availed by the appellant company for which service tax payable under reverse charge mechanism for that period had remained unpaid. Show-cause notice was accordingly, issued and upon receipt of reply and after personal hearing of the appellant company, the adjudicating authority accepted the reply of the appellant given in response to the show-cause as well as submissions made by it during personal hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memo of appeal filed before this Tribunal and during course of hearing, the ld. Counsel for the appellant, referring to the judicial decision cited supra argued that such a remand power is not available with the Commissioner (Appeals) in service tax case and the appellant was a recipient of service of contract labour where the labourer worked under the control of the contractor and there is no supply of manpower service availed by it. He further argued that in case of contract labour engagement, the service tax liability rests with the service provider and full value of service tax was payable under the category of Business Auxiliary service for which he prays to set aside the order of Commissioner (Appeals). 4. In response to the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for certain category of services fixing liability of payment of service tax partially on the service provider and partially on the service recipient. The governing body of Central Excise, CBEC had issued clarification in the education guide that in the partially reverse charge method, the service provider shall issue an invoice indicating the name, address and registration of the service provider and that of the service receiver, to mention the description of service as well as value of taxable service provided or agreed to be provided and the service tax payable thereon inclusive of service tax payable by service provider. Notification 33/12-ST dated 30.06.2012 indicates that if the turnover of the service provider is less than 10 lakhs, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed from any of those four specific sources as mentioned above and the order of the first adjudicating authority in accepting the reply to the show-cause of the appellant tantamount to the admission made by an accused about his guilt and imposition punishment (penalty) on him without assessing about the genuineness of such admission, when statutorily, he was duty bound to determine the classification made by the assessee before him. This being the factual position, in view of the judicial precedent set by the Hon'ble Supreme Court cited supra that after the amendment made in 2001 into Section 35A w.e.f. 11.05.2001 the power of remand of the Commissioner (Appeals) being taken away, it was incumbent upon the Commissioner himself to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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