TMI Blog2020 (1) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... -2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri A.R. Madhav Rao, Advocate, with Shri Mihir Deshmukh, Advocate, for the Appellant Ms. Vinitha Sekhar, Additional Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against the order in original No 17 18/ ST-III/SKD/2015 dated 18.06.2015 of the Commissioner of Service Tax III, Mumbai. By the said order, the Commissioner has held as follows: 4.24.1 In respect of the first show cause notice bearing F No V/STC/SA-115/Gr.1/2003 dated 20.04.2004, a) I confirm the demand of Service Tax amounting to ₹ 35,60,733/- (Rupees Thirty Five Lakhs Sixty Thousand Seven Hundred and Thirty Three only) which was not paid by them on the suppressed/concealed taxable value of service rendered as Steamer Agent and which escaped assessment for months of October 2001, November 2001, January 2002, to May 2002, July 2002, October 2002, December 2002 and February 2003 under section 68 read with Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No V/STC/SA-115/GrVII/2003 dated 07.04.2005, a) I confirm the demand of Service Tax amounting to ₹ 1,01,08,946/- (Rupees One Crore One Lakhs Eight Thousand Nine Hundred and Forty Six only) which was not paid by them on the suppressed/ concealed taxable value of service rendered as Steamer Agent and which escaped assessment for months of November 2003, December 2003, January 2004, February 2004 and March, 2004 by misusing the provisions of Notification No 21/2003 dated 20.11.2003 under section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rule, 1994, which be paid by/ recovered from the noticee; b) I confirm the demand of Service Tax amounting to ₹ 8,71,840/- (Rupees Eight Lakhs Seventy One Thousand Eight Hundred and Forty only) which was not paid by them on the suppressed/ concealed taxable value of service rendered as Manpower Recruitment Agency and which escaped assessment for months of April 2003 to March 2004 under section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rule, 1994, which be paid by/ recovered from the noticee; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 to February 2003 and November 2003 to March 2004 with intention to evade payment of Service Tax by misusing the provisions of Notification No 6/99 dated 09.04.1999 Notification No 21/2003 dated 20.01.2003. They had also wrongly availed the Service Tax Credit by not fulfilling the conditions/ provisions of Service Tax Credit Rules, 2002. 2.3 On the basis of these, two show cause notices were issued to the appellants asking them to show cause as to why- A. Show Cause Notice F No V/STC/SA-115/Gr.1/2003 dated 20.04.2004- (a) Service Tax short paid amounting to ₹ 35,60,733/- for the period from October 2001 to February 2003 in respect of the services rendered under the category Steamer Agent , Service tax short paid amounting to ₹ 5,74,418/- for the period from October 1998 to November 2003 in respect of service rendered as Manpower Recruitment Agency and Service Tax short paid amounting to ₹ 25,78,000/- for the period from October 1998 to November 2003 in respect of service rendered as Clearing and Forwarding totalling to ₹ 67,13,151/- should not be demanded and recovered from them under section 68 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o A/591/2012/CSTB/C-I dated 09.07.2012 holding as follows: 4. On examination of the impugned order, we find that although the adjudicating authority has recorded the defence taken by the appellants in reply to the show cause notice but no finding on the issue has been given by the adjudicating authority. 5. In view of these observations, the impugned order is set aside and sent back to the adjudicating authority for de novo adjudication. The adjudicating authority shall pass a speaking order on all the issued contended by the appellants. It is also pertinent to mention here that the appellant shall be given reasonable opportunity to defend their case. The adjudicating authority shall pass the adjudication order within 90 days of receipt of this order. All issues are kept open. The appeal is disposed of in above terms. 2.5 In the de novo proceedings, Commissioner has passed the impugned order. 3.1 We have heard Shri A.R. Madhav Rao and Shri Mihir Deshmukh, Advocates for the Appellants and Ms Vinitha Sekhar, Additional Commissioner, Authorised Representative, for the Respondent. 3.2 Arguing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the defence submissions and the record of personal hearing; 21 to 31 records the discussions and findings of the adjudicating authority in the matter. 4.3 In para 4.2 of impugned order, Commissioner records as follows: 4.2 As a general principle, each show cause notice has to be considered in the factual matrix of the case and the issue involved therein, which is distinct and unique for each case. The applicability of law being thus dependent on these material facts, the outcome of each case would be governed accordingly. The totalities of facts and circumstances involved, which differ from case to case have to be considered for arriving at a proper decision in the matter. The detail position of the allegations and defence submission made in the case have been recorded, in order to ensure clarity and transparency. Hence for the sake of brevity the same is not reproduced again now. 4.4 Then in para 4.3, 4.4, 4.5, 4.6.1, 4.6.2, 4.7.1, 4.7.2, 4.7.3, 4.7.4, 4.8.1 and 4.8.2 he records the provisions of the law as amended from time to time. Then without referring to any things or the facts of case he recorded in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.12 Thus, one of the requirement for treating a service as Export is that payment should be realized in foreign exchange. Hence, if payment is not received as prescribed by Reserve Bank of India (RBI), it would lead to non satisfaction of the condition and Service Tax will be payable on such services, not amounting to export. 4.8 In para 4.13.1 he refers to the CESTAT decision in case of M/s Microsoft Corpn (I)(P) Ltd [2009 (15) STR 680 9T-Del)] and in para 4.13.2 records as follows: 4.13.2 Thus, a prima facie view was held that this is not export of service and the Appellant was asked to make pre-deposit of ₹ 70 Crores. The writ petition against the Appeal has also been dismissed by the Hon ble High Court, New Delhi (vide W P (C) No 11460 of 2009 C M No 11182 of 2009 decided on 30.10.2009). Tribunal has since then decided the appeal of Microsoft giving the benefit of export of services. 4.9 Then in para 4.14 he refers to another Circular 111/05/2009 ST dated 24.02.2009 interpreting Rule 3(1)(iii) of Export of Service Rules, 2005. In para 4.15.1 he discusses Section 67(2) of Finance Act, 1994 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been reflected in the impugned order which we would reproduce hereinafter. 21. It is pertinent to point out here that in Gold Coin (supra), what was being challenged by the Revenue, was the order passed by same Bench of the High Court of Gujarat at Ahmedabad, which finds place at page 309, wherein before proceeding to decide the matter, the three learned judges of this Court thought it fit to reproduce the same. The question of law as projected in Gold Coin (supra) before the High Court and the question of law as projected in this appeal is identical but what is being deciphered by us is the manner in which the impugned judgment has been written and pronounced. After all, at the High Court level, when a matter is considered on merits by a Division Bench, not only factual but even legal aspect of the matters is required to be considered at some length. 5.1 In view of the discussions as above, we allow the appeal and remand the matter back to adjudicating authority to consider the submissions made by the Appellant and decide the issue by way of speaking order after analyzing the facts and law on the subject. Needless to say that adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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