Oriental Aromatics Ltd., Eou vs Commissioner Of Central Excise And ...
- CitationAppeal No. 562/2012 dated 17/10/2012 passed by Commissioner of Central Excise and Service T
Ratio decidendi
The rule this decision rests on
Where a demand of service tax is founded on the receipt of a taxable service, the department must first identify the documents evidencing receipt of the service, the consideration paid, and the tax calculated, before tax can be demanded; a show-cause notice that does not do so, and a demand resting only on ledger entries and a balance sheet without verification of the underlying documents, cannot sustain the liability that the taxable event has occurred. Where the assessee contends that its expenditure was wrongly classified under the transportation head and has produced certificates and evidence of tax paid on the relevant consideration, the adjudicating authority must consider and verify those materials; where the record does not show that the taxable event occurred and the demand has not been properly quantified, the matter is remanded for fresh adjudication after waiver of the pre-deposit, with a reasonable opportunity to the assessee to present its case.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 562/2012 dated 17/10/2012 passed by Commissioner of Central Excise and Service Tax, MANGALORE.]
For approval and signature:
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? 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
Oriental Aromatics Ltd., EOU Plot No.7D, KAIDB Industrial Area, Baikampady MANGALORE. KARNATAKA Appellant(s)
Versus
Commissioner of Central Excise and Service Tax MANGALORE 7TH FLOOR, TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE 575 003. KARNATAKA Respondent(s)
Appearance:
None For the Appellant
Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent
Date of Hearing: 20/02/2015
Date of Decision: 20/02/2015
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20403 / 2015
Per : B.S.V.MURTHY
Service tax has been demanded as a receiver of GTA service from the appellant for two years viz., 2007-08 and 2008-09 amounting to Rs.1,15,189/-.
2. Nobody is present on behalf of the appellant. The matter is coming up for the fourth time since 11.7.2014 the day on which the first posting of the matter was done. Therefore the stay application is taken up for consideration.
3. The learned AR submits that appellant claimed that the service receiver was C & F Agent but no evidence was produced.
4. After going through the submissions made in the appeal memorandum, I find that it is the appellants claim that they had produced evidence that the amount paid to shipping agent for import cargo and export cargo has been included is not correct. They had obtained certificates from shipping agent and evidence of payment of service tax on consideration received, the payments made to auto rickshaws has also been included, etc. From the order-in-appeal, it is noticed that mainly the Commissioner (A) has relied upon the ledger and the balance sheet and the actual documents have not been verified. If the accountant has wrongly booked the expenditure under the transportation category, it may not be proper to demand tax. For demanding of tax from any assessee, it is necessary to show that the taxable event has occurred. Therefore while issuing show-cause notice it was necessary to identify the documents under which GTA service has been received, LR note, consignment note or bill, etc., and the total amount of consideration indicated and the tax payable calculated. No such efforts seems to have been made. Therefore appellant deserves another opportunity to provide such a worksheet and to show that they are not liable to pay any amount or even any amount is to be paid or pays the same. Thereafter after waiving the requirement of pre-deposit, matter is remanded to the original authority for fresh adjudication. The appellant may be given reasonable opportunity to present their case before the matter is adjudicated afresh.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER rv 3
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