Olety Carz Pvt Ltd vs Commissioner Of Service Tax ...
- CitationAppeal No.288-2013 dated 26/07/2013 passed by Commissioner of Central Excise and Service T
Ratio decidendi
The rule this decision rests on
The Tribunal may dispense with the balance of a pre-deposit once the appellant has deposited a substantial part of the demanded tax (here, Rs.1 lakh of Rs.1,12,773), which is the stay-related basis on which the balance was waived. Where the appellant's plea that a small-scale-industry (SSI) exemption notification would defeat the demand was not raised before the first appellate authority, the Tribunal will not decide that plea on appeal, and the matter is remanded to the original adjudicating authority to examine it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No.288-2013 dated 26/07/2013 passed by Commissioner of Central Excise and Service Tax , BANGALORE-II( Appeal) ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI 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?
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 Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Olety Carz Pvt Ltd 36, Sajjan Rao Road, V.v Puram, BANGALORE - 560004 KARNATAKA Appellant(s)
Versus
Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Shri Mohd. Rahim, Advocate For the Appellant Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent
Date of Hearing: 07/01/2015
Date of Decision: 07/01/2015
CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20037 / 2015
Per : ARCHANA WADHWA
After hearing both the sides, we find that out of the total demand of tax Rs.1,12,773/-, the appellants have already deposited an amount of Rs.1 lakh. Accordingly, we dispense with the condition of predeposit of balance amounts.
2. At this stage, learned advocate submits that originally there was a demand of Rs.15 lakhs (approx.)] raised and confirmed against them in respect of two activities under the category of Business Auxiliary Service (BAS). However, Commissioner(Appeals) dropped the demand in respect of profits made by them on sale/purchase of second hand cars and upheld the taxability of the commission earned by them. He submits that if the said activity is required to be upheld as taxable, even then, no demand would stand against them inasmuch as they would be entitled to the benefit of SSI exemption Notification No.6/2005-ST. However, he fairly agrees that as the demand initially was much on the higher side, the said issue was not pressed before the Commissioner(Appeals).
3. In view of the above, we deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for examining the appellants plea of applicability of SSI exemption notification. We order accordingly. Stay petition as also appeal get disposed of in above manner.
(Order pronounced and dictated in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
Raja.
2
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