M/S. Sk Minerals Handling vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Original No.CCE/BBSR-II/S.Tax/No.13/COMMISSIONER/2013 dated 28.10.2013 passed by the Commissioner of Central Excise, Customs & Service Tax, BBSR-II.)

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. SK Minerals Handling Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise, BBSR-II Respondent (s)

Appearance:

Shri K.Kurmi, Advocate for the Appellant (s)

Shri S.Sharma, Commr.(A.R.)for the Respondent (s)

CORAM:

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

Date of Hearing:- 17.03.2015 Date of Pronouncement :- 17.03.2015

ORDER NO.FO/A/75144/2015

Per Dr. D.M. Misra.

1. This is an application seeking waiver of pre-deposit of service tax of Rs.50.92 Lakhs and equal amount of penalty imposed under section 78 and penalty of Rs.5,000/- under section 77(2) of the Finance Act, 1994.

2. At the outset the ld.advocate for the applicant submits that the present demand has been confirmed against them under the category of cargo handling services. The ld.advocate vehemently argued that the entire services rendered to their clients, namely, M/s.Sahara International Ltd., Burbil and others were in relation to export of goods, hence no service tax is required to be paid. He submits that at the time of adjudication, the applicant could not substantiate their aforesaid claim by adducing sufficient evidences to establish that the services rendered by the applicant were towards export of goods due to non-availability of documents. He submits that however, as on date, out of Rs.4.94 Crores value of taxable services involved, they could gather evidences to show that Rs.3.94 Crores(approx.) relates to services rendered towards export of goods. He submits that for the balance amount they are in the process of collection of evidences. At this stage, he makes an offer to deposit Rs.5.00 Lakhs and prays that the matter may be remanded to the adjudicating authority to consider the evidences.

3. The ld.A.R. for the Revenue reiterated the findings of the ld.Commissioner. He has brought to our notice that the applicant had failed to produce sufficient evidences as recorded at para 4.7 of the impugned order. He has no objection in remanding the case.

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 lack 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, 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.5.00 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

4 Appeal No. S.T. 75171/14