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Energy Economy & Environmental ... vs Commissioner Of Service Tax Bangalore

Customs Excise and Service Tax Appellate Tribunal9 September 2015

Ratio decidendi

The rule this decision rests on

The Tribunal, in deciding whether to stay recovery pending appeal, holds that a pre-deposit ordered as a condition of hearing an appeal is to be fixed by reference to the grounds that are prima facie made out on the material before it: where the assessee's ST-3 returns differ from the figures in its balance sheet, and where the claimed abatement of 75% on the ground of reimbursed actual expenses is not supported by documentary evidence, those grounds justify a deposit of a sum less than the amount the Commissioner (Appeals) had directed. A pre-deposit ordered as a condition for hearing an appeal, where the appellant has not complied with an earlier stay direction, may be reduced by the Tribunal to the amount it considers sufficient, having regard to the strength of the grounds shown on the record, with the appeal to be decided on merits once the reduced deposit is shown to have been made.

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/21675/2014 in ST/21509/2014-DBAppeal(s) Involved:ST/21509/2014-DB

[Arising out of Order-in-Appeal No. 103/2014 dated 03/02/2014 passed by the Commissioner of Central Excise, Bangalore-II ( Appeals) ]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, 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? No 2 Whether it should be released under Rule 27 of the 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

Energy Economy & Environmental Consultants PB No. 3828, No. 624, 6th A Main, 2nd Stage, 17th Cross, Indira Nagar Bangalore  560 038 Karnataka Appellant(s)

Versus

Commissioner of Service Tax Bangalore 1st To 5th Floor, TTMC Building, Above BMTC Bus Stand, Domlur Bangalore  560 071 Karnataka Respondent(s)

Appearance:

Mr. G. Sampath, Advocate 543, 12th Cross, 8th Main, J.P. Nagar 2nd Phase, Bangalore - 560 078 For the Appellant

Mr. Ajay Saxena, DR For the Respondent

Date of Hearing: 09/09/2015 Date of Decision: 09/09/2015 CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21887 / 2015

Per: ARCHANA WADHWA

After hearing both the sides we find that the Commissioner (Appeals) has dismissed the appellants appeal for non-compliance with the directions contained in his Stay Order directing the applicant to deposit an amount of Rs. 25,00,000/- (Rupees Twenty Five lakhs only) out of the total confirmed service tax of Rs. 32,35,930/- (Rupees Thirty Two Lakhs Thirty Five Thousand Nine Hundred and Thirty only) and penalty of identical amount.

2. The appellant is a registered provider of Consulting Engineer Services, and was paying service tax. However as per audit conducted in the appellants factory, it was found that there was difference in the value of services as reflected in ST-3 returns and as recorded in the Balance Sheet. Learned advocate explains that the Balance Sheet figures are on the basis of invoices raised by them whereas ST-3 figures are on the basis of actual receipts.

Apart from above, learned JCDR brings to our notice that the appellant has been paying service tax on 25% of the value of the services by claiming abatement of 75% on the ground of re-imbursement of actual expenses. However they have not produced any documentary evidence to show that actual expenses incurred by them and reimbursed by their client were to the tune of 75%.

3. By taking note of both the above grounds, we are of the view that a deposit of Rs. 10,00,000/- (Rupees Ten lakhs only) as a condition of hearing of appeal would suffice. We accordingly direct the applicant to deposit Rs. 10,00,000/- (Rupees Ten lakhs only) within a period of eight weeks from today and report compliance to Commissioner (Appeals), who would after ascertaining compliance decide the appeal on merits. Stay petition as also appeal get disposed of in above manner.

(Order pronounced in open court)

(ASHOK KUMAR ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

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