Harita Tvs Technologies Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-In-Appeal No 202-2013 dated 13/06/2013 passed by Commissioner of Central Excise , BANGALORE-II( Appeal) ]

For approval and signature:

HON'BLE Mrs.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?

Harita Tvs Technologies Ltd No.10,3rd Main,ashwini Layout,ejipura BANGALORE - 560047 KARNATAKA Appellant(s)

Versus

Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Ms. Radhika Sriranjani, Advocate K.VAITHEESWARAN ADV SRIRANJINI, FLAT NO.3, FIRST FLOOR, OLD NO.9, NEW NO.21, THANIKACHALAM ROAD, T. NAGAR, CHENNAI. CHENNAI - 600017 TN For the Appellant

Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 07/01/2015

Date of Decision: 07/01/2015

CORAM:

HON'BLE Mrs.ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20038 / 2015

Per : B.S.V. MURTHY

After hearing both sides for some time on the stay petition, we find that the appeal itself can be disposed of. Accordingly after waiving the condition of predeposit, we take up the appeal for final disposal.

2. The demand for service tax of more than Rs.31 lakhs with interest has been confirmed for the period 2004-05 to 2006-07 on the ground that the appellant has rendered consulting engineers service to the customers and have not paid the tax. Penalty also has been imposed.

3. Heard both sides. Learned counsel submits that appellant has no doubt rendered consulting engineers service and they had also rendered temporary manpower supply service. She submits that to some of the customers, they have provided technically qualified engineers on a temporary basis and on these amounts they have not paid service tax whereas they were paying service tax regularly on consulting engineers service provided by them to their customers. She submits that even though appellant had made the submissions before the lower authorities that the services provided were only of manpower supply, yet the submissions were not considered and orders have been passed. She also submits that the entire demand is time barred since the audit for the period had been completed in 2007 and show-cause notice was issued in 2009.

4. After going through one of the master general agreements entered into between the appellant and M/s. Sundaram-Clayton Ltd., we found that in Clause 3 relating to payments, two types of schedules envisaged in the master agreement. In respect of support cover under Schedule A to the agreement, payment was to be based on the number of persons deployed by HISL (appellant) and accepted by the appellant and it was to be computed based on the agreed rates for the level of persons provided. As regards the support cover under Schedule B of the agreement, it was considered as activity based support service and the payment was to be made on the basis of service activities provided. She submits that as regards the activities in Schedule B, the appellants have paid the service tax under consulting engineers service and it is the appellants claim that for the activities in Schedule A, the appellant need not pay the tax for the period prior to 16/06/2005. She submits that even for the period subsequent to 16/06/2005, the appellant has paid the tax but under consulting engineers service only and there was an omission in classifying the service and paying it accordingly. She also submits that as regards manpower service, the appellant simply supplied the manpower as per the requirement and assessment of work, supervision of work and monitoring of the supplied manpower were done by the customers.

5. From the submissions made above, prima facie, it appears that the claim of the appellant that the service rendered was covered by manpower supply service has some validity. However this aspect has not been examined in detail by going through the concerned orders, schedules to the orders and the relevant invoices. Further the claim that subsequent to 16/06/2005, they have paid the tax under consulting engineers service was not made before the original adjudicating authority. Moreover, a small amount relates to IT support service which is also required to be considered since the IT service came into statute only in 2008 for the purpose of levy. Since the issues have not been examined in detail, the matter has to be remanded at this stage itself.

6. In view of the above, the impugned order is set aside and the matter is remanded to the original adjudicating authority who shall verify the claim made by the appellant and appellant shall submit all the details comprising the orders, invoices etc. to the original adjudicating authority within two months from today and thereafter the original adjudicating authority will proceed to adjudicate the matter. Stay petition as also appeal get disposed of in above manner.

(Order pronounced and dictated in open court)

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

Raja.

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