M/S. Zenith (Bangalore) Rollers Pvt. ... vs Cce, Hyderabad-Iv

(Arising out of Order-in-Appeal No.18/2009(H-IV) S.Tax dt. 28/10/2009 passed by CCE&ST(Appeals-II), Hyderabad)

For approval and signature:

Honble Mr. Justice G. Raghuram, President Honble Mr. B.S.V. Murthy, 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 authoritative report or not?

3. Whether their Lordship wish to see the fair copy of the Order?

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

M/s. Zenith (Bangalore) Rollers Pvt. Ltd. ..Appellant(s)

Vs. CCE, Hyderabad-IV ..Respondent(s)

Appearance Shri Karan Talwar and Shri Nitesh, Advocates for the appellant.

Shri G. Shirel Saroj, Authorised representative for the Revenue

Coram:

Honble Mr. Justice G. Raghuram, President Honble Mr. B.S.V. Murthy, Member(Technical)

Date of Hearing:25 & 26/05/2015 Date of decision:26/05/2015

FINAL ORDER No._______________________

[Order per: G. Raghuram]

Heard the learned counsel for the appellant and the learned authorized representative for the respondent/Revenue. Assessee is in appeal against the order of the learned Commissioner(Appeals-II), Hyderabad dt. 28/10/2009. The impugned order rejected the assessees appeal, preferred against the adjudication order dt. 30/03/2009 passed by the Additional Commissioner, Hyderabad-IV Commissionerate whereby service tax demand of Rs.15,41,582/- apart from interest and penalties as specified therein was confirmed on the basis that the assessee has provided management, maintenance or repair (MMR) service, a taxable service involving re-rubberisation of worn out/old spindles for the printing industry.

2. The factual matrix of issues considered by the primary adjudicating authority reveal that the assessee undertakes re-rubberisation of old and unused spindles for the printing industry by coating old and unused spindles with rubber compounds, (the spindles being supplied by customers); thereafter vulcanizing the rubber; thus rendering the spindles fit for use and supplying the re-furbished spindles back to the customers. The assessee classified this activity as business auxiliary service (BAS) and in view of the Notification No.14/2004-ST dt. 10/09/2004 as amended by Notification No.19/2005-ST dt. 07/06/2005 (whereby all taxable services provided in relation to printing was exempted from the whole of service tax leviable thereon), the assessee assumed that there was no liability to tax.

3. Proceedings were initiated culminating in the primary adjudication order which stood confirmed by the impugned order upholding the claim of Revenue that the assessee had provided MMR service and not BAS.

4. This is issue is no longer res integra. In the assessee/appellants own case, reported in 2014(33) STR 678 (Tri. Del.), an identical activity of the appellant was classified by the Tribunal as falling under BAS, negating Revenues contention that it should be classified as MMR service. If the activity is BAS as ruled by this Tribunal in the decision cited, the service provided by the appellant falls within the ambit of exemption Notification No.14/2004-ST dt. 10/09/2004 is not in dispute.

5. On the aforesaid analysis, the orders of the primary and the lower appellate authorities are unsustainable, invite invalidation and accordingly are quashed. The appeal is allowed. In the circumstances no costs.

(Pronounced and dictated in open court)

( G. RAGHURAM ) PRESIDENT

Raja

(B.S.V. MURTHY) MEMBER (TECHNICAL)

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