Jindal Stainless Ltd vs Cce, Rohtak
- CitationAppeal No. ST/52096/2014-ST-SM
Ratio decidendi
The rule this decision rests on
The tribunal does not decide the taxability question on the merits; it expressly declines to rule on it, leaving it for the adjudicating authority in light of a "recent judgement." The only reasoning in the text bearing on law is the procedural ground for remand. Accordingly, the ratio is: Where the adjudicating authority has not considered whether the assessee is entitled to adjustment of credit, and the assessee is ready to produce the documents relating to credit availed, and the question of limitation has not been considered, the appellate tribunal may set aside the order and remand the matter for de novo adjudication by the primary authority on those issues, rather than deciding them itself.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA No.671/SVS/RTK/2013 dt.31.12.2013 passed by CCE(A), Delhi-III, Gurgaon)
Date of Hearing/Decision: 27.07.2015
For approval & Signature:
Honble Smt.Sulekha Beevi C.S., Member (Judicial)
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 would 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 Department Authorities? Yes
Jindal Stainless Ltd. Appellant
Vs.
CCE, Rohtak Respondent
Appearance:
Present for the Appellant: Shri K.K.Gupta, Advocate
Present for the Respondent: Shri R.K.Gupta, DR
Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial)
Final Order No.52724/2015
Per: Sulekha Beevi C.S.
The brief facts of the case are that, appellants are having a factory at Hisar in the name of Jindal Stainless Limited. The appellants have established a club in the name and style The Stainless Club located near the factory. The objective of the said club is to provide facilities/activities for recreation of its employees and family members. The Club rendered its service to its members who are employees of the company. A show cause notice was issued for the period 16.6.2005 to 30.6.2010 alleging that appellants are providing taxable services as defined under section 65(105) (zzze) of Finance Act, 1994. The notice finalized in the order which confirmed the demand. Being aggrieved appellants filed appeal and the Commissioner (Appeals) vide order dated 31.12.2013 upheld the same. Hence this appeal.
2. On behalf of the appellant the contention raised was twofold: Firstly that the activity of rendering service to its members will not come within the purview of taxable services as there has to be two entities for charging tax i.e. service provider and another service recipient. That in the appellants case the service is provided by club to its own members and associates and there are no two separate entities as service provider and service recipient. He also relied upon the decision rendered in the Ranchi Club Ltd. Vs. CCE,Ranchi Zone -2012 (26) STR 401 (Jhar.) and Honble Gujarat High Court in the case of Sports Club of Gujarat Ltd. Vs. UOI-2013 (31) STR 645 (Guj.). The second argument advanced is that even if the services are held taxable they are eligible for credit on inputs, input service and capital goods utilized by them. On further adjustment of the said credit the net demand would be Rs.96,376/- only. They have deposited tax alongwith interest on 9.7.2010, and that the Commissioner (Appeals) failed to consider this aspect and has not given adjustment of credit.
3. Learned DR defended the impugned order and held that service provided by the Stainless Club or associates to its members is chargeable to service tax. With regard to the issue whether the appellant is entitled to adjustment of credit he submitted that the issue has be to be examined with regard to documents that have to be produced by the appellant.
4. After hearing both sides, I am of the view that it is a fit case for de novo adjudication as the authority have not considered the issue whether the appellant is entitled to adjustment of credit. Learned Counsel for the appellant submitted that they are ready to produce all necessary documents regarding the credit availed. It is also submitted that the issue of limitation was not considered. In view thereof, the matter is remanded to the primary adjudicating authority for de novo adjudication in the light of the recent judgement regarding the issue whether the services rendered by a Club to its members is liable to levy of service tax and also if taxable whether the appellant is entitled to adjustment of credit; and also consider the issue of limitation.
5. The appeal is thus allowed by way of remand.
(dictated and pronounced in the open court)
(Sulekha Beevi C.S.)
Member (Judicial)
mk
4
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