Mega Technobiz Consultants Pvt. Ltd vs Cst, Delhi

No. ST/Misc/61397/2013, ST/Stay/61395/2013 & ST/60374/2013-CU(DB)

[Arising out of Order-in-Appeal No. 170/S.Tax/D-II/2013 dated 10.8.2013 passed by the Commissioner (Appeals), Central Excise, New Delhi]

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Mega Technobiz Consultants Pvt. Ltd. Appellant

Vs.

CST, Delhi Respondent

Appearance:

Shri R.S. Sharma, Advocate - for the Appellant

Shri B.B. Sharma, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 51633/2015

Per R.K. Singh :

Misc. application has been filed by the appellant to add fresh ground in respect of appeal filed against Order-in-Appeal dated 10.8.2013. The additional grounds essentially are :

(1) The Commissioner (Appeals) order for 100% pre-deposit of impugned service tax was perverse, arbitrary and unjustified.

(2) Its application for modification of the pre-deposit order of Commissioner (Appeals) (ordering 100% pre-deposit) on the ground of financial hardship was not properly considered.

(3) It was entitled to the benefit of Section 80 of the Finance Act, 1994.

The additional grounds are sought to be added in the context of the interim order of the Commissioner (Appeals) No. 30/2013 dated 28.6.2013 requiring pre-deposit of 100% service tax liability as it had not mentioned these grounds earlier under the impression that it was filing appeal only against final order in appeal dated 10.8.2013. Reasonable cause having been shown, the Misc. application is allowed.

2. While arguing the stay application, the appellant has contended that pre-deposit of 100% of impugned service tax ordered by the Commissioner (Appeals) was arbitrary, perverse and unjustified and its request for modification of the same on the ground of financial hardship was unjustly rejected by the Commissioner (Appeals) on the untenable ground that there was no legal provision which allowed him to review/modify/correct an interim order. Having thus observed the Commissioner (Appeals) rejected its appeal for failure of pre-deposit. The appellant has further contended that the impugned demand was confirmed under manpower supply service while it was only doing job work in the premises of the principal manufacturer and was being paid on the basis of job completed. We have perused the terms of payment and find that the appellant was being paid on per piece basis in the name of assembly charges of Actuator parts at the rates mentioned for various parts like terminator card, RMA card SBC card etc. etc. and therefore prima facie it was not a case of manpower supply service. The appellant did not get the opportunity to argue the matter on merit before the Commissioner (Appeals) because of dismissal of its appeal on account of failure of pre-deposit. Having regard the facts and circumstances of this case and in view of the discussion above, we waive the requirement of pre-deposit and remit the matter to the Commissioner (Appeals) to decide the same on merit without insisting on pre-deposit. Nothing should be read in this order as expressing any opinion about the merit of this case.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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