M/S Bansal Trading Co vs Cce, Panchkula

Date of Hearing/Order: 09.07.2015

(Arising out of Order-in-Review No.05/Commr/Pkl/Rev/09

dt.25.2.09 passed by the CCE, Panchkula)

Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.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

M/s Bansal Trading Co. Appellant

Vs.

CCE, Panchkula Respondent

Present for the Appellant: None

Present for the Respondent: M.R.Sharma, AR

Coram: Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.Sulekha Beevi C.S., Member (Judicial)

FINAL ORDER NO.52459/2015

PER: R.K.SINGH

Appeal has been filed against Order-in-Review dated 25.2.2009 which set aside the Order-in-Original date 1.3.2007. When the case is called today, there is no representation nor is there any request for adjournment on behalf of the appellant. The notice of hearing was received back. In the circumstances, we proceeded to decide the appeal.

2. Learned AR contends that though there is sale and purchase of the goods, the existence of service is not deniable and that non quantification of the demand and penalty is not fatal to the order.

3. We have considered the contention of the learned AR and also perused the relevant papers. In this case the appellant was alleged to have provided Business Auxiliary Service to its customers on behalf of Mobile Company as direct selling agent/direct marketing agent for which it was paid commission/incentives by the Mobile Company. The appellant claimed that it was only engaged in buying and selling and is not providing any service. The Revisionary Authority passed the following order:

(i) The Order-in-Original NO.03/AC/ST/YNR/2007 dated 28.2.2007 passed (dropping the proceedings of show cause notice) by the Assistant Commissioner, Central Excise Division, Yamuna Nagar is annulled under section 84 of the Finance Act, 1994;

(ii) I invoke the extended period as envisaged under the proviso (1) to Section 73 of the Finance Act, 1994 as the fact of rendering the services under Business Auxiliary Services was deliberately suppressed from the department with intention to evade service tax;

(iii) Accordingly, I hold that unpaid service tax amount on account of service tax liability and education cess thereon on Business Auxiliary Services under section 73 of the Finance Act, 1994 is payable along with interest in terms of section 75 of the Finance Act,1994 vide show cause notice No.IV(16)ST/SCN/958/BAS/HQRS/PKL/2005/2214dated 07.6.2005;

(iv) I held that penalty under erstwhile Section 75A, Section 76 and Section 78 of the Act ibid upon M/s.Bansal Trading Company, Yamuna Nagar for contravention of provisions of section 70,68,69 of the Act ibid is imposable which in total will be equal to service tax not paid.

4. We find that the primary adjudicating authority had dropped the proceeding initiated vide show cause notice dated 7.6.2005 on the ground that the appellant was engaged in buying and selling the Mobile Companys products and there was no material evidence available on record of providing taxable service and no amount of service charges or service tax has been quantified in the show cause notice. We find that the Order-in-Review (quoted above) also does not quantify the value of service or the amount of service tax nor does it quantify the amount of penalty. Certainty is a non negotiable requirement in the tax proceedings and in the absence of any quantification of the value of service, the amount of service tax or penalty the order is to be treated as bad in law and hence non sustainable. Therefore, we refrain from analyzing whether the service rendered by the appellant actually falls under Business Auxiliary Service in the wake the appellants of contention that what was done was sale/purchase of recharge coupons and there was no service rendered.

5. In the light of the foregoing discussion, we do not find Order-in-Review sustainable and accordingly allow the appeal.

(dictated and Pronounced in the open court)

(SULEKHA BEEVI C.S.) (R.K.SINGH)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

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