Pinks N Bloos Beauty Saloons Pvt. Ltd vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 134/2013 dated 05/09/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad - II ]

For approval and signature:

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

Pinks N Bloos Beauty Saloons Pvt. Ltd. Lilly Block, Flat No. 506, Nectar Gardens, Madhapur Hyderabad  500 081 Andhra Pradesh Appellant(s)

Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV Posnett Bhavan, Tilak Road, Ramkote, Hyderabad  500 001 Andhra Pradesh Respondent(s)

Appearance:

Mr. Pradyumna G.H., Advocate C/o. KenTree Consultants (P) Ltd. No. 371, 2nd Floor, 8th Main Road, Sadashivanagar, Bangalore  560 080 For the Appellant

Mr. R. Gurunathan, AR For the Respondent

Date of Hearing: 17/03/2015 Date of Decision: 17/03/2015 CORAM:

HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER

Final Order No. 20778 / 2015

Per: B.S.V. MURTHY

Appeal has been dismissed for non-compliance with the directions of the Commissioner (Appeals) requiring the appellant to deposit 50% of the service tax payable by them. Since the issue lies within a narrow compass, the requirement of pre-deposit is waived and appeal itself is taken up for final decision.

2. Learned counsel submits that appellant was running a beauty parlour in the premises of Jubilee Hills International Centre (JHIC) and there was an agreement between the two parties that the appellant will provide service only to the members of the club and no member will be billed by the appellant. The club will collect the money from members and pay it to the appellant after deducting 15% as the commission for the club. The club also agreed that they will bear the service tax liability in its entirety. However subsequently proceedings came to be initiated against the appellant for payment of service tax on the services rendered in the premises of JHIC on the ground that as a service provider, appellant was liable to pay service tax. He submits that the most relevant portion of the agreement has not been taken note of and therefore this has happened.

3. Learned AR vehemently opposes this and submits that as a service provider the appellant is liable to pay service tax and Jubilee Hills club has paid or not is not relevant to the assessee. He also submits that no evidence has been produced to show that JHIC has paid the tax. He also submits that there is another case of services rendered in the Infosys premises and in that case the appellant paid the tax. This was countered immediately by the learned counsel stating that there is no finding as regards service tax liability for the services rendered in the Infosys premises.

4. I have considered the submissions. Sum and substance of the whole issue is whether the JHIC has paid the tax or not and whether that can be considered as payment of service tax. When the appellant did not raise any bills in respect of members but raised the bill on the club and that club billed the members for the service of beauty parlour rendered by them, the service provider to the members becomes the club and not the appellant in my opinion. In this case service provider is club to the members. However there cannot be any dispute that appellant may also be liable to pay service tax but that may not be under the category of Beauty Parlour Service since the club being not a human being cannot be provided beauty parlour service. In any case I do not want to express any opinion on this issue which is binding on lower authorities. In my opinion prima facie the appellant has a case if JHIC has paid service tax on the entire amount collected for the service of beauty parlour rendered to the members. The only ground taken is that no evidence was produced.

5. In view of the above discussion, the matter is remanded to the learned Commissioner (Appeals) with a direction to hear the appeal without insisting on any pre-deposit. The appellant shall produce all the evidences documentary and otherwise before the Commissioner (Appeals). I make it clear that I have not expressed any opinion on this issue. Needless to say the appellant shall be given reasonable opportunity to present their case.

(Order pronounced and dictated in open court)

(B.S.V. MURTHY) TECHNICAL MEMBER

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