Md. Aub Khan vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 62/2012 dated 11/09/2012 passed by the Commissioner of Customs, Central Excise and Service Tax, Guntur]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Md. Aub Khan Shop No.21, HDCT Complex, R.S. Road, Kurnool, Andhra Pradesh Appellant(s)

Versus Commissioner of Customs, Central Excise and Service Tax, Guntur P.B.No. 331, C.R. Building, Kannavarithota, Guntur - 522 004 Andhra Pradesh Respondent(s)

Appearance:

None For the Appellant

Mr. S. Teli, AR For the Respondent

Date of Hearing: 30/03/2015 Date of Decision: 30/03/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER

Final Order No. 20918 / 2015

Per : B.S.V. MURTHY

Nobody is present on behalf of the appellant but a written memo has been received. In the memo it has been submitted that all the services provided by the appellants in dispute have been provided in relation to transmission and distribution of electricity and are exempted from service tax vide Notification No. 45/2010-ST dated 20.07.2010 till 2010 and subsequently under Notification No. 11/2010-ST dated 27.02.2010. The period is covered by the notification which has been given retrospective effect.

2. After hearing the learned AR and going through the records, it is seen that the original authority had not considered the liability of service tax on the ground that appellant had deposited the entire amount of service tax and produced the challan. Before the learned Commissioner (Appeals), appellant had claimed the benefit of notification. However the learned Commissioner has held that services provided by the appellant are provided prior to distribution and transmission of electricity and therefore the appellant is not eligible. However based on which the Commissioner has come to this conclusion is not available. There is no contrary finding that manpower supply service has not been provided to a transmission and distribution company. There is no detail available as to how the service provided by the appellants has to be treated as the one provided prior to transmission and distribution of electricity. Notification No. 45/2010 exempts all the services rendered in relation to transmission and distribution of electricity and there is no distinction made prior to commencement of transmission or distribution subsequently. It is quite clear that in this case services are provided to M/s. APCPDCL which is engaged only in transmission of electricity and therefore services provided by them have to be considered as the one provided for transmission not distribution. Under these circumstances we consider that the appellants clearly are eligible for the benefit of Notification No. 45/2010. In view of the fact that the issue involved has been considered in detail and there is nothing left to look at, it would be appropriate to allow the appeal itself at this stage rather than keeping the matter pending for years before this Tribunal.

3. In view of the above discussion, the impugned order is set aside and the appeal is allowed with consequential relief, if any, to the appellant. The stay application also is disposed of.

(Order pronounced and dictated in open court)

(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

iss