Commissioner, Central Excise, ... vs Abhimanyu Sable Fitness And Management ...

[Arising out of Order-in-Appeal No. PIII/RP/27/2013 dtd. 8/2/2013 passed by the Commissioner (Appeals-III), Central Excise, Pune-III]

For approval and signature:

Honble Mr Ramesh Nair, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

Commissioner, Central Excise, Pune-III : Appellants

VS

Abhimanyu Sable Fitness and Management Pvt. Ltd. : Respondent

Appearance

Shri B. Kumar Iyer, Superintendent for the Appellant None for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 18/6/2015 Date of decision: 18/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in-Appeal No. PIII/RP/27/2013 dtd. 8/2/2013 passed by the Commissioner (Appeals-III), Central Excise, Pune-III, wherein the Ld. Commissioner (Appeals) has passed following order:

(i) Confirmation of demand of Service tax under the category of Management or Business Consultancy Serivces is upheld in respect of the entire amount received by the appellant till date, against the services valued at Rs. 1,93,83,5566/- provided by them during the period 2005-06 to 2007-08.

(ii) No service tax is payable on the amount which has not been received by the appellant till date, against the services valued at Rs. 1,93,83,556/- provided by them during the period 2005-06 to 2007-08.

(iii) Service tax would become payable whenever any payment is received by the Appellant against the services valued at Rs.1,93,83,556/- provided by them during the period 2005-06 to 2007-08

(iv) Confirmation of Interest in respect of demand confirmed as per (i) above is upheld under Section 75 of the Act.

(v) Penalty imposed on the Appellant under Section 78 of the Act is set aside, in view of payment of Service tax by the appellant since 2005-06.

Superintendent Service tax shall verify the correctness of the Service tax and interest already paid by the appellant, as per the above direction & shall recover the balance Service tax & interest, if found short paid.

2. The Revenue challenged the impugned order on the following ground:

7. Upon examination of the impugned Order-in-Appeal dated 8.2.2013,, the committee of Commissioners is of the view that the impugned order in appeal is not proper and legally correct, inter-alia, on the following grounds:

(i) The Commissioner (Appeals) has failed to confirm the exact amount of service tax liability calculated on the basis of receipts of the assessee, although the he had verified the Books of accounts of the assessee and also the reconciliation statement submitted by therein, showing details of actual receipts and outstanding balance at the material time, duty certified by the C.A. Whereas, by virtue of provisions under sec. 85(4) of FA, 1994, the Commissioner(Appeals) was well within his authority to consider and reconsider the liability of service tax amount and for this purpose, he had all the rights to cause verification of the facts and re-determine the exact service tax liability. In this case, having cause such verification, he has refrained from determining the exact service tax liability of the assessee and to that extent the order appears inadequate and is not legal and proper;

(ii) The Commissioner (Appeals) has confirmed the demand of interest in respect of the demand confirmed u/s 75 of the FA, 1994. However, since the amount of service tax demand itself has not been determined & specified, the confirmation of interest on the same appears to be an order in abstract and hence not legal & proper.

8. In view of the above, the Commissioner (Appeals), having verified all the documents submitted by the assessee, should have determined the exact amount of service tax liability of the assessee, along with interest thereon. For the reason cited above, the order-in-appeal appears to be bad in law.

3. Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue submits that Ld. Commissioner (Appeals) has not quantified actual service tax and to that extent order suffers from the infirmity. He submits that the Commissioner (Appeals) has power under section 85(4) for correct determination of the service tax liability. Since the Commissioner did not quantify the actual service tax liability impugned order is not proper and legal.

4. I have carefully considered the submission made by Ld. A.R. and perused the ground of appeal.

5. I find that the Commissioner (Appeals) in his order categorically held that the entire value of service tax is liable for service tax however service tax can be recovered only on the amount which was received till date of passing of this order. He also held that amount of service tax which not received till that date no service tax is paid. He also held that the amount which was not received and as and when the same is received it will be liable for service tax and at the same time Ld. Commissioner directed superintendent to verify correctness of the service tax and also directed to recover balance of service tax interest if found short paid. In view of the above order of the Ld. Commissioner (Appeals), I do not find any infirmity in the order and there cannot be any grievances of the Revenue because entire service tax leviable has been ordered to be recovered subject to receipt of service charges. Therefore I am of the view that impugned order is proper and legal and does not require any interference and hence the same is upheld. The Revenues appeal is dismissed.

(Dictated in court)

Ramesh Nair Member (Judicial)

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