M/S. Pge Lifestyle Venture Pvt.Ltd vs Commissioner Of Service Tax, Kolkata

(Arising out of Order-in-Original No.99-100/Comm/ST/KOL/2013-14 dated 31.03.2014 passed by the Commissioner of Service Tax, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M.MISRA, MEMBER(JUDICIAL) HONBLE DR.I.P.LAL, 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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. PGE Lifestyle Venture Pvt.Ltd. Applicant (s)/Appellant (s)

Vs.

Commissioner of Service Tax, Kolkata Respondent (s)

Appearance:

Shri Promed Kr. Rai, Advocate for the Appellant(s)

Shri K.Chowdhury, Supdt.(A.R.) for the Revenue

CORAM:

Honble Dr. D.M.Misra, Member(Judicial) Honble Dr.I.P.Lal, Member(Technical)

Date of Hearing :- 09.06.2015 Date of Pronouncement :- 09.06.2015

ORDER NO.FO/A/75289/2015

Per Dr. D.M.Misra.

1. This is an application seeking waiver of pre-deposit of Service Tax of Rs.4.86 Crores and equal amount of penalty imposed under Section 78 an penalty under section 76, 77(1)(a) and 77(2) of the Finance Act, 1994.

2. Shri Promed Kr.Rai, ld.Advocate for the applicant submits that during the period 2007-08 to 2011-12 the applicant besides rendering services under the category of business support service as defined under section 65(105)(zzq) read with section 65(104c) of the Finance Act to their clients namely M/s. Zoomin Online (India) Pvt.Ltd. and M/s.Aqua Java Fast Food Centre Pvt.Ltd. were also engaged in trading of goods during the said period. It is his submission that even though they have placed enough evidences before the ld.Commissioner in support of their claim that besides rendering the said taxable services, they were also engaged in trading activities, the ld.Commissioner ignored the evidences of trading sales and considered the entire receipts during the respective years as from rendering business support service to the said clients and confirmed the demand. In support of their claim that they were also engaged in trading sales activities, the ld.Advocate referred to extract of their profit and loss account for the year 2008-09 (annexed at page 99 to the appeal paper book) wherein trading sale was shown as Rs.6,46,27,108/-, statutory auditors report (page 198 to page 200), the sales turn-over for the sales financial year was also shown as Rs.6,46,2,709/-. He has also referred to the list of vendors form whom the purchases were effected during the said period (enclosed at page 208 of the appeal paper book). Besides, he has categorically submitted that the VAT return filed by them also reflects their trading sales for the respective years which are also enclosed with the appeal paper book. It is the grievance of the applicant that the ld.Commissioner failed to consider any of these evidences before recording his conclusion that the entire receipts were only against rendering taxable services to their clients namely M/s. Zoomin Online (India) Pvt.Ltd. and M/s.Aqua Java Fast Food Centre Pvt.Ltd.. It is his submission that the finding of the ld.Commissiner, is therefore, incorrect, being contrary to the evidence on record and hence untenable in law.

3. Per contra the ld.A.R. for the Revenue has fairly accepted that the evidences relating to the claim of trading sale were not considered by the ld.Commissioner while passing the adjudication order. He has no objection in remanding the case for analysis/scrutiny of these evidences.

4. After hearing both sides for some time we find that the appeal itself could be disposed of at this stage. Accordingly after waiving the requirement of pre-deposit, we take up the appeal itself for disposal with the consent of both sides.

5. We find that the major portion of the demand relates to rendering of services to M/s. Zoomin Online (India) Pvt.Ltd. and M/s.Aqua Java Fast Food Centre Pvt.Ltd. under the category of business support services. It is the claim of the appellant that besides rendering taxable services to these two clients they were also, on their own, engaged in trading activities and the ld.Commissioner has erroneously included the receipts against trading sales in confirming the demand. The appellant in support of their contention that they were also engaged in the trading of goods placed evidences from their balance sheet, VAT return and statutory auditors report etc. From the impugned order, we find that the ld.commissioner has not discussed at all these evidences, while confirming the demand observing that the appellant though received certain amounts against rendering of business support service to M/s. Zoomin Online (India) Pvt.Ltd. and M/s.Aqua Java Fast Food Centre Pvt.Ltd., but not paid the service tax on the said receipts. Both sides agree that these evidences are relevant and ought to have been analyzed/scrutinized by the ld.Commissioner before arriving at a conclusion that the receipts recorded by the appellant in their books of accounts are only against rendering of services and not related to trading of goods. In the result the impugned order is set aside and the appeal is remanded to the ld.Commissioner for deciding all issues afresh after taking into consideration the evidences on record. Needless to mention a reasonable opportunity of hearing be granted to the appellant. All issues are kept open. Appeal is allowed by way of remand. Stay Petition disposed of.

(Operative part of the order was pronounced in the open court.)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

5 Appeal No.ST-76047/14