M/S.S.K.Mineral Handling (P) Ltd vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Original No.CCE/BBSR-II/S.Tax/No.01/COMMISSIONER/2012 dated 20.01.2012 passed by the Commissioner of Central Excise, Customs, & Service Tax, Bhubaneswar-II.)

M/s.S.K.Mineral Handling (P) Ltd. Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise, Customs & Service Tax, BBSR-II Respondent (s)

Appearance:

Shri K.Kurmy & Shri S.B.Sharma, Adv.s for the Appellant (s)

Shri A.Roy, Supdt.(A.R.) for the Respondent (s)

CORAM:

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

Date of Hearing:- 17.06.2015 Date of Pronouncement :- 17.06.2015

ORDER NO.FO/A/75310/2015

Per Dr. D.M. Misra.

1. Heard both sides.

2. This is an application seeking waiver of pre-deposit of Service Tax of Rs.1.00 Crore and equal amount of penalty imposed under section 78 and penalty of Rs.5,000/- under section 77 of the Finance Act, 1994.

3. The demand has been confirmed against the applicant on the ground that the applicant failed to adduce sufficient evidences in justifying their claim that the services under the taxable category of cargo handling, rendered by them were in relation to export of goods. Out of the total exports, valued at Rs.9.00 Crores, now they could able to procure and place evidences including the CA Certificate establishing export of Rs.4.44 Crores. For the remaining amount they are in the process of collection of evidences. He submits that in similar circumstances, this Tribunal in the applicants own case vide order No.FO/A/75144/2015 dated 17.03.2015 remanded the issue for re-consideration of the evidences procured subsequently. He submits that because of the closure of mines in Orissa the applicant is out of business. However, he makes an offer to deposit Rs.7.50 Lakhs and prays that the matter may be remanded to the adjudicating authority for re-consideration of the evidences afresh.

4. After hearing both sides for some time we find that the appeal itself could be disposed of at this stage. Accordingly, the appeal itself is taken up for disposal with the consent of both sides.

5. We find that the demand has been confirmed against the applicant on the ground that the appellant had rendered cargo handling services during the relevant period, but failed to discharge service tax. It has been the claim of the appellant before the adjudicating authority that the cargo handling services rendered by them to their clients relate to export of goods, hence no service tax is payable. However, admittedly, they could not substantiate their claim before the adjudicating authority due to non-availability of evidences. Now, they claimed to have been in possession of the relevant documents which undoubtedly needs to be scrutinized before accepting their claim that the entire service rendered by them under the category of cargo handling were related to export of goods. In the result, it is an appropriate case to remit the matter to the ld.Commissioner for deciding the issue afresh. Consequently, we direct the appellant to deposit the offered amount of Rs.7.50 Lakhs within a period of eight weeks from the date of communication of the order and report compliance directly to the ld.Commissioner. The ld.Commissioner after recording compliance would proceed with the adjudication taking into consideration the evidences now placed before us and the evidences that would be produced before him at the time of adjudication. Needless to mention, a reasonable opportunity of hearing be granted to the appellant. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

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

3 Appeal No.S.T. 214/12