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Bhavani Erectors Pvt Ltd vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal23 March 2015

Ratio decidendi

The rule this decision rests on

The Tribunal's reasoning rests on a single principle: where the appellant has not been able, before the original authority, to produce the evidence needed to reconcile the difference between the value shown in its balance sheet and its ST3 returns, and to substantiate its CENVAT credit availment, and the appellant requests another opportunity for that purpose, the appellate authority may set aside the impugned order and remand the matter to the original authority for fresh consideration after affording the appellant reasonable opportunity to produce such evidence, and may waive the pre-deposit requirement for that purpose.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCHBANGALOREApplication(s) Involved:ST/Stay/20112/2015 in ST/22743/2014-DBAppeal(s) Involved:ST/22743/2014-DB

[Arising out of Order-in-Appeal No. 10-2014 dated 06/01/2014 passed by Commissioner Of Customs, Central Excise and Service Tax(Appeals) , BELGAUM ]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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?

Bhavani Erectors Pvt Ltd Bhavani Trade Centre, High School Juntion, Karunagapally KOLLAM - 690518 KERALA Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax Belgaum NO. 71...CLUB ROAD, CENTRAL EXCISE BUILDING, BELGAUM, - 590001 KARNATAKA Respondent(s)

Appearance:

Ms. Nisha Bineesh, Advocate For the Appellant

Shri S. Teli, Deputy Commissioner(AR) For the Respondent

Date of Hearing: 23/03/2015

Date of Decision: 23/03/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20860 / 2015

Per : B.S.V. MURTHY

The appellant is engaged in providing erection, commissioning and installation service and maintenance or repair service. The demand for service tax of Rs.3,53,64,712/- with interest has been confirmed for the period from 2007 to 2010. On the basis of the fact that there was a difference between the value of consideration received for service rendered in their balance sheet and the ST3 returns filed by the appellant. In addition, there is an issue of irregular availment of CENVAT credit also.

2. Learned counsel submits that there is a duplication of figures for the period upto September 2008 and she submits that the same issue had come before this Tribunal and stay has been granted vide Stay Order No.1309/2012 dt. 06/08/2012. Further she also submits that at that time when the matter was considered by the original authority, they did not have evidences to show that principal contractor had paid the tax and also documentary evidence to show as to why the difference has arisen between the ST3 returns and the balance sheet. During the relevant period, they also could not produce evidences on the basis of which CENVAT credit had been taken. Therefore she submits that matter may be remanded at this stage itself to the original authority so that the appellant gets another opportunity to produce evidences and records and also to clarify about the difference between the balance figures and the ST3 returns and also documents relating to availment of CENVAT credit. We consider the request is reasonable.

3. Accordingly we waive the requirement of predeposit and appeal itself is decided. The impugned order is set aside and the matter is remanded to the original authority to consider the matter afresh after giving reasonable opportunity to the appellant and to pass a well reasoned order in accordance with law.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

3

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