M/S Rosy Blue (I) Pvt. Ltd vs Commissioner Of Service Tax

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I

Application No. ST/ROM/94117/15 Appeal No. ST/88970/14

(Arising out of Order-in-Original No. 019 to 020/STC-I/SKS/14-15 dated 02.06.2014 passed by Commissioner of Mumbai-I)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

M/s Rosy Blue (I) Pvt. Ltd. Appellant Vs.

Commissioner of Service Tax Mumbai I

Respondent

Appearance:

Shri A. Shirazi, Advocate for appellant Shri R.K. Das, Dy. Commissioner (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of Hearing: 10.08.2015 Date of Decision: 10.08.2015

ORDER NO

Per: M.V. Ravindran

This ROM application filed by the applicant is seeking to correct an error apparent on the face of the records.

2. Learned Counsel submits that during the course of final hearing when the matter was heard and disposed of on 29.05.2015, the Bench has not considered one of the very vital aspects of the case. He would submit that in the case of the appellant there was a demand on them under the category of Certification charges which was argued but the Bench has not recorded any findings. He would submit that they had argued the alleged output services provided by the appellant as is in the annexure was produced before the Bench and is in respect of export service charges, commission charges and Certification charges. He would submit that the certification charges are in respect of the diamonds which are exported and cost of the certification is always included in the value/price of the goods. This aspect was not properly addressed by the adjudicating authority. He would draw our attention to the findings recorded by the adjudicating authority on this issue.

3. Learned D.R. would submit that the appellant had not given any documents to come to a conclusion hence the findings recorded by the adjudicating authority are correct.

4. We have considered the submission made by both sides and perused the records.

5. We find that the application made by the appellant is correct and there seems to be an error apparent on the face of the records. We find that there is a demand of service tax on the appellant under output services in respect of an amount accounted in the records as certification charges. This particular issue was argued before us and due to insufficient evidence, we were of the view that the matter needs reconsideration. Inadvertently the said findings were not recorded in our final order dated 29.05.2015.

6. We find that the appellant had contested the issue before the adjudicating authority and the adjudicating authority has recorded the following:-

4.7 The SCN also alleges that the notice had received Certification charges on Export, for providing the services of Sieving, weighing (handling) of the polished diamonds to other exporters of diamonds. M/s RBIPL charges for such services given by them as Certification costs/handling charges in their invoice. This certification process is carried out by their own employees in India. Also in respect of the income of Certification Charges on testing of diamonds which is shown in their Miscellaneous income account head. This was also confirmed by Mr. Nilesh Shah in his statement dated 27.9.2011 and has since been not disputed. 

7. It can be seen from the above reproduced findings that if the appellant is able to justify the plea that they had in fact included the amounts into price/cost of the final product exported if so there cannot be any service tax on the Certification charges on export. Without expressing any opinion on the merits on this issue, we remit the matter back to the adjudicating authority for this limited purpose. To that extent the final order is rectified.

8. In sum, as regards the service tax liability on Certification charges, on export, matter is remanded back to the adjudicating authority to reconsider the issue after following principles of natural justice.

(Dictated in Court)

(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)

nsk

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Application No. ST/ROM/94117/15 In Appeal No. ST/88970/14