M/S. Maltex Malsters Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Original No. 76-77/ST/Appeal/CHD-II/2013 dated 8.03.2013 passed by Commissioner of Central Excise (Appeals) Chandigarh]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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

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?

M/s. Maltex Malsters Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

Chandigarh

Appearance:

Shri Joy Kumar, Advocate for the Appellants

Shri B B Sharma, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

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

Date of Hearing /decision: 20. 4.2015

ORDER NO. FO /51468-51469 /2015-Cus(Br)

Per Ashok Jindal :

The appellants are in appeal against the impugned orders along with application for stay.

2. After hearing both sides, we find that appeals themselves can be disposed of at this stage. Therefore, we waive the requirement of pre-deposit and take up the appeals for disposal.

3. The brief facts of the case are that

2. Brief facts of the case are that officers of Central Excise initiated an enquiry against that appellants and it was found that the appellants have entered into an agreement dated 29.01.2003 with M/s UB for the consideration of Rs. 30,00,000/- per annum. Clause 7 of the lease deed dated 29.01.2003 stated that The Lessee shall utilize the services of such employees other rolls of the Lessor as on the date of this Lease Deed during the term of this Agreement. These employees shall continue to be on the rolls of the Lessor and in no manner shall it be construed or deemed that such employees have been taken or transferred to Lessees rolls. The Lessee shall reimburse the Lessee all the costs in connection with the salaries and other costs including all statutory dues under all statutes/laws including inter alia Provident Fund, ESI, Bonus and such other laws as are applicable, on behalf of the employees of the Lessor on a monthly basis irrespective of variation in level of production. The Lessor undertakes to pay all statutory dues in respect of their employees under all Statues/laws including inter alia, labour laws.

Provident Fund, ESI, and such other laws as are applicable. The Lessor shall keep the Lessee indemnified at all times in the event of any action taken or prosecution initiated against the Lessee in connection with any of the Lessors employers. However, additional expenses incurred on festival occasions on its employees and others on whose rolls the employees are working shall be borne by the Lessor with any of the lessors employees. Matter was further investigated and statement of Sh. Jaspal Anand, Manager was recorded. Department took a view that appellants are engaged in providing Manpower Recruitment or Supply service as per Section 65 (105) (K) of the Finance Act, and appellant are Manpower Recruitment or Supply Agency as per definition under Section 65 (68) of the Finance Act. Accordingly two Show Cause Notices dated 12.02.2009 and 23.09.2009 were issued to the appellants demanding service tax amounting to Rs. 77,58,825/- for the period 01.01.2003 to 31.12.2008 and 6,58,514/- for the period 01.01.2009 to 30.06.2009 and also proposing levy of interest and imposition of penalty on the appellants.

After due process the case was adjudicated by the Commissioner vide the impugned order confirming service tax along with interest and imposing penalties under Section 76 and 78 of the Act. Appellants have challenged the impugned order in the present appeals.

3. We find that in appellants own case, this Tribunal has observed as under:

6. We have considered the submissions of Ld. Advocate and Ld. DR. We find that Rule 5(1) of service tax (Determination of value) Rule 2006 has been held ultra vires Section 67 of the Finance Act, 1994 and this Rule can not be relied on by the adjudicating authority. Similarly tax is demanded on Manpower Recruitment or Supply Agency service value of which is required to be segregated from total lease amount. Without expressing any view on merit of the case we remand the matter back to commissioner of Central Excise for fresh adjudication in light of decision of Delhi High Court in case of Intercontinental Consultants & Technocrats Pvt. Ltd. (Supra) after affording a opportunity of hearing of the appellants. Appellants are free to provide any other fresh material /evidence in their support before adjudicating authority.

4. Therefore, following the precedent decision in appellants own case, we set aside the impugned orders and remand it back to the adjudicating authority as discussed in para 6 hereinabove.

5. In these terms, the appeals are disposed of by way of remand. Stay petitions are also disposed of in the above terms.

( Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

( R K Singh )

Member(Judicial)

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