Bharat Heavy Electricals Ltd vs Commr. Of Service Tax, Kolkata

(Arising out of the Order-in-Original No.05/Commr./ST/Kol/2013-14 dated-May 14, 2013 passed by the Commissioner of Service Tax, Kolkata)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

Bharat Heavy Electricals Ltd.

APPELLANT(S) VERSUS

Commr. of Service Tax, Kolkata RESPONDENT(S)

APPEARANCE

Dr. Samir Chakraborty, Advocate, Sri Abhijit Biswas, Advocate FOR APPELLANT(S) Sri S. Sharma, Commissioner (A.R.) FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 18/06/2015

ORDER NO.FO/75312/2015 Per DR.D.M. MISRA Heard both sides and perused the records.

2. The applicant is a public sector undertaking. The present application is for waiver of pre-deposit of Service Tax of Rs.21.19 Crores and equal amount of penalty.

3. Prima facie, we find that even though the Service Tax liability has been accepted by the applicant for rendering the taxable services under the category of Works Contract service during June 1, 2007 to September 30, 2010, the Ld. Commissioner, in absence of proof of payment of the accepted service tax amount, confirmed the demand. The Ld. Advocate now place before the Tribunal records in support of their claim of payment including by utilization of CENVAT Credit amount, but, he fairly admits that these documents were not placed before the Ld. Commissioner during the course of adjudication.

4. On the other hand, the Ld. A.R. (Commissioner) for the Revenue submits that at this stage, without due verification it is difficult to accept about the said claim of payment of service tax; also CENVAT Credit is not admissible on the inputs in view of the stipulation contained in Notification No. 32/2007-ST dated-22 May, 2007 when option is exercised under Works Contract (Composite Scheme) for payment of Service Tax. However, he fairly accepts that the documents need to be considered by the adjudicating authority and he has no objection in remanding the case. However, the Ld. A.R. (Commissioner) vehemently argued that the appellant be put into terms in remanding the case to the lower authority.

5. After hearing both sides for some time we find that the appeal itself could be disposed off at this stage. Accordingly, we take up the appeal for disposal with the consent of both sides.

6. We find that the limited issue needs to be considered in the light of evidences now produced by the appellant is that whether they had discharged the accepted service tax liability of Rs.37,95,14,961/- as there is no dispute about the same. Also, undisputedly, the Ld. Commissioner has confirmed the demand on the ground that the appellant could not place before him necessary evidence to establish that the accepted tax liability has been discharged. The appellant, on the other hand, before this forum for the first time, produced certain documents/evidences including payment by utilizing CENVAT Credit, in support of their claim of discharge of the entire service tax liability. Both sides agree that the documents need to be verified to ascertain the payment of admitted service tax liability. At this stage, taking note of the concern of the Revenue that the appellant be put into terms in remanding the case, we direct the appellant to deposit Rs.1.5 Crores (Rupees one crore and fifty lakhs) within eight weeks from the date of communication of the order and report compliance directly to the Ld. Commissioner. The Ld. Commissioner after recording compliance would proceed with the matter by taking into consideration the evidences on record and all evidences that would be produced before him in support of their claim of payment of service tax liability. Needless to mention a reasonable opportunity of hearing be granted to the appellant. All issues are kept open. Appeal is allowed by way of remand. S.P. disposed off.

(Dictated & pronounced in the open Court) Sd/- 23/06/15 Sd/- 22/06/2015 (DR.I.P.LAL) (DR. D.M. MISRA) TECHNICAL MEMBER JUDICIAL MEMBER

k.b/-

Service Tax Appeal No. 70997/2013

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