M/S. Operational Energy Group India ... vs Cce & St, Chennai

(Arising out of Order-in-Appeal No. 64/2014 dated 21.02.2014, passed by the Commissioner of Central Excise (Appeals), Chennai).

M/s. Operational Energy Group India Pvt. Ltd. : Appellants

Vs.

CCE & ST, Chennai : Respondent

Appearance

Shri J. Shankararaman, Adv., For the applicant

Shri M. Rammohan Rao, DC (AR) For the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member

FINAL ORDER No. 40541-40544 / 2015

Date of Hearing/Decision: 08.05.2015

Per: R. Periasami

Since the issued involved in all the four appeals are identical in nature and arising out of common Order in Original and common Order in Appeal, therefore, after dispensing with all the four stay applications, all appeals are taken up together for disposal.

2. Ld. Advocate for the appellant submits that they were engaged in maintenance and operation of power plants at various places and received maintenance and operation charges from their clients. They are registered with the Service Tax department and paying service tax on maintenance charges received from 01.07.2003 onwards. Appellants use consumables for D.M. Plant chemicals, cooling water treatment, LDO etc., for the operation of power plants and are not liable to tax. Whereas, the department demanded service tax on the above mentioned consumables. Since the appellants are engaged in generation of electricity which is covered and classified under Central Excise Tariff Act, no service tax is demandable. He further submits that on identical issue the Tribunal vide Stay order No. 528/08 dated 26.06.2008, misc. order No. 41288/2013 dated 10.05.13, misc. order No. 42305-42307/2013 dated 16.09.2013, consistently granted unconditional stay. Vide Stay petition No. 236/2013 (MST) dated 19.12.2013 Commissioner (Appeals) directed them to pre-deposit a sum of Rs. 30,00,000/-, which the appellants have not complied. Hence, the Commissioner (Appeals) dismissed their appeal for non-compliance of the stay order. Therefore, he prayed to remand the case to the lower appellate authority after granting waiver of pre-deposit and to decide the case on merits.

3. Heard both sides and perused the records. On perusal of the impugned order, we find that the lower appellate authority has directed pre-deposit of Rs. 30,00,000/- vide his order dated 19.12.20013. Since the appellants have not complied, the Commissioner (Appeals) dismissed their appeals. As it is evident from the fact that the issue is of recurring nature and already pending before this Tribunal prior this Tribunals order dated 26.06.2008 and thereafter all the subsequent appeals were allowed waiver of pre-deposit. The appellants have not brought the fact of the Tribunals Stay order dated 26.06.2008 and 10.05.2013, before the Commissioner (Appeals). Hence, the lower appellate authority has dismissed their appeals for non-compliance. Without going into the merits of the case, it is a fit case for remanding the matter to the lower appellate authority and accordingly, after waiving the pre-deposit the impugned order is set aside and all the four appeals are remanded to the lower appellate authority with the direction to decide the issue on merits, after giving reasonable opportunity to the appellants without insisting on pre-deposit. Accordingly, all the four appeals are allowed by way of remand. All the four stay applications are disposed of accordingly.

(Order dictated and pronounced in the open Court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER BB 1