Synergy Infra Consultants Pvt. Ltd vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 165/2013 dated 23/10/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad-II ( Appeals)]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, 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

Synergy Infra Consultants Pvt. Ltd. 11-2, Dhruvatara Apartments, 6-3-652/D/27, Amrutha Estates, Somajiguda, Hyderabad  500 082 Andhra Pradesh Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax Hyderabad-II 7th Floor, Kendriya Shulk Bhavan, L.B. Stadium Road, Basheer Bagh Hyderabad  500 004 Andhra Pradesh Respondent(s)

Appearance:

Mr. Ch. Nageswara Rao, Consultant Customs, Central Excise and Service Tax, Flat No. 404, Devi Homes Apartments, D. No. 10-4-1/A, R.K. Nagar, Near Cha-Cha Nehru Park, Masab Tank, Hyderabad  500 028 For the Appellant

Mr. Ajay Saxena, DR For the Respondent

Date of Hearing: 09/09/2015 Date of Decision: 09/09/2015 CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR. ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21890 / 2015

Per: ARCHANA WADHWA

After hearing both the sides we find that Commissioner (Appeals) has dismissed the appeal for default of non-compliance with the Stay Order passed by him directing the applicant to deposit 50% of the service tax confirmed against them to the extent of Rs. 8,34,555/- (Rupees Eight Lakhs Thirty Four Thousand Five Hundred and Fifty Five only).

2. After hearing both the sides we find that the appellant is providing Consulting Engineer Services and is registered with the department and paying service tax, after filing the ST-3 returns. However, wherever he has provided sub-consultancy to the main consultant, service tax has not been paid by him.

3. As on audit objection, demand was raised against the appellant for confirmation of service tax on the said services provided by him to the main consultant. The appellant during adjudication took a categorical stand that the main consultant has discharged the service tax liability on the entire value of the contract and as such there is no legal liability on the assessee who is only a sub-consultant, to pay the service tax. Such plea of the appellant does not stand considered by the original adjudicating authority.

4. On appeal Commissioner (Appeals) while passing the Stay Order observed that the appellant has produced certain evidences on record but they are not sufficient to establish that the main consultant had paid the service tax on the full value of the services.

5. As such we find that the dispute revolves around the evidence required to be produced by the assessee to show that the main consultant had paid the service tax on the full value. As per the appellant the said evidence was produced before the original adjudicating authority, who has not adverted to the same. Ordinarily in the case of dismissal for non-compliance we would have remanded the matter to Commissioner (Appeals) but as in the present case documentary evidences are required to be examined and verified, we deem it fit to remand the matter to the original adjudicating authority. We order accordingly. Stay petition as also appeal get disposed of in above manner.

(Order pronounced in open court)

(ASHOK KUMAR ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

iss