Commissioner Of Central Excise & S.T., ... vs M/S. Century Cold Tyre Retreads

(Arising out of OIA No. Commr(A)/64/VDR-I/2007 dated 22.03.2007, Passed by Commr. (Appeals) C. Excise & Service Tax, Vadodara)

Commissioner of Central Excise & S.T., Vadodara : Appellant (s)

Vs.

M/s. Century Cold Tyre Retreads : Respondent (s)

Represented by :

For Assessee : None

For Revenue : Shri G.P. Thomas, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. R.K. Singh, Hon'ble Member (Technical)

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

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. R.K. Singh, Hon'ble Member (Technical)

Date of Hearing / Decision : 12.01.2015

ORDER No. A/10041/ 2015 Dated 12.01.2015

Per : Mr. P.K. Das;

Revenue filed this appeal against the order of the Commissioner (Appeals) whereby the adjudication order was set-aside. None appears on behalf of the respondent. There is no application for adjournment. On perusal of the records, we find that the matter was adjourned earlier and nobody turned up on behalf of the respondent. After considering the appeal is old one, we take up the appeal for disposal.

2. After hearing the learned AR for the Revenue and on perusal of the records, we find that the issue involved in this case is whether the benefit of Notification No. 12/2003-ST dated 20.6.2003 is available on the value of material used in the retreading of tyres. Learned AR for the Revenue relied upon the decision of the Tribunal in the case of Safety Retreading Company (P) Limited vs. CCE, Salem - 2012 (26) STR 225 (Tri. Chennai) and the decision in the case of Laxmi Tyres vs. CCE,Pune - 2013-TIOL-1261-CESTAT-MUM. We find that there is a recent decision of the Honble Delhi High Court in the case G.D. Builders vs. UOI  2013 (32) STR 673 (Del.) wherein the Hon'ble High Court has held that Service Tax can be levied on the service component of any contract involving service with sale of goods, etc. Computation of service component is a mater of detail and not a matter relating to validity of imposition of service tax. It is procedural and a matter of calculation. Merely because no rules are framed for computation, it does not follow that no tax is leviable.

3. Learned Authorised Representative for the Revenue submits that the present appeal is not a case of Works Contract Service. We find that the present appeal relates to demand of tax under the category of Maintenance or Repair services on retreading of tyres. The Respondent paid service tax on labour charges and claimed benefit of exemption Notification No. 12/2003-ST dated 20.6.2003 on material portion. The Larger Bench of the Tribunal in the case of Hindustan Aeronautics Limited vs. Commissioner of Service Tax, Bangalore  2013 (32) STR 783 (Tri. LB) in respect of demand of service tax on repair or maintenance service, followed the decision of the Hon'ble Delhi Court in the case of G.D. Builders (supra). In our view, in the present case, the findings of the Hon'ble High Court is to be examined in the facts and circumstances of the case.

4. Accordingly, we set-aside the impugned order in respect the above issue. The matter is remanded to the adjudicating authority to decide the case in the light of decision of the Hon'ble High Court in the case of G.D. Builders (supra) and in accordance with law. Needless to say that adjudicating authority shall give proper opportunity of hearing to the Respondent before passing order.

Appeal allowed by way of remand.

(Dictated and pronounced in the Court)

(R.K. Singh) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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