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Ruchi Infrastructure Ltd. v/s C.C.E., Indore

    Service Tax Appeal No. 51439 of 2018(SM) in-Appeal No. IND-EXCUS-000-APPL-625- 17-18 & Final Order No. 53106 of 2018
    Decided On, 03 October 2018
    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
    For the Appellant: R. Sudhinder, Saumya Mehrotra, Advocates. For the Respondent: P.R. Gupta, D.R.

Judgment Text
1. The present is an appeal against the order of Commissioner (Appeals) dated 15.02.2018. The appellant herein is engaged in Storage and Warehousing Services, Port Services, Transport of Goods by Road, Cargo Handling Services and Rending of Immovable Property Services and they are accordingly registered with the Service Tax Department. However, the Department during the order noticed that the appellant is not paying Service Tax on Export Cargo Handling Charges for the facilities provided by them to their client at Jam Nagar Port. But they were noticed availing the credit of Service Tax paid on the bills of various services. The Department alleged that they were not allowed credit on the input services used for provisions of exempted services. Resultantly, the show cause notice dated 18.04.2016 was served upon them raising a demand of Rs.1,10,197/- towards the exempted services rendered during the period of 2014-15 and 2015-16 under the category of Export Cargo Handling Services and the recovery thereof in accordance of Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. The interest at the appropriate rate and the penalty proportionate was also demanded. The said show cause notice was initially adjudicated vide order dated 21.06.2017 whereby the said entire demand was confirmed. Being aggrieved, appeal was filed before the Commissioner (Appeals) who vide the order under challenge has dismissed the appeal. Resultantly, the present appeal has been filed.

2. I have heard Mr. R. Sudhinder & Ms. Saumya Mehrotra ld. Advocates for the appellant and Mr. P.R. Gupta, ld. DR for the Department.

3. It is submitted on behalf of the appellant that the entire genesis of the impugned demand is the letter of Range Superintendent Service Tax, Grade 7, Indore dated 15.02.2016 vide which details of accounts as mentioned therein including the weighment income was called for. The said letter was duly replied with vide letter dated 2nd March, 2016 submitting that the Service Tax as far as the weighment income has already been deposited. It is submitted that still the show cause notice under a wrong presumption of nonpayment of Service Tax and wrong availment of Cenvat Credit was served upon the appellant. It is further impressed upon that initially the true fact of payment of the Service Tax/ the discharge of liability of appellant could not be brought to the notice of the adjudicating authorities below. The reply as mentioned above could not be brought to the notice along which were also provided the copy of ST-3 Returns of the impugned period. The matter is therefore prayed to be remanded for the fresh adjudication. It is further impressed upon that there has been another misconception created while asking for the demand of grading income in letter dated 15.02.2016 (relied upon in the show cause notice) whereas the income is the grinding income. Thus, the said demand has also been wrongly confirmed while overlooking the said confusion, which again makes it a fit case for being remanded. The appeal accordingly is prayed to be allowed by way of remand.

4. While rebutting these arguments, ld. DR has submitted that two demands have been raised against the appellant; one is under Rule 6 (3) of CCR, 2004 vide which the appellant was liable to pay 6% duty even on the exempted services. The second demand is about the tax liability of the appellant qua the weighment charges. The order of Commissioner (Appeals) has been justified where he has relied upon Section 66 D sub clause (3) of the Finance Act and were, while holding that the activity carried out by the appellant since is not carried out at an agricultural firm, he is liable to pay the tax. It is impressed upon there seems no infirmity in the order. The demand has rightly been confirmed. No case of remand as prayed for is made out. Appeal is prayed to be dismissed.

5. After hearing both the parties and perusing the record, it is observed that the letter dated 15th February, 2016 as impressed upon by the appellant to be the genesis of the case shows that the appellant was asked to provide the details of Cargo Handling Services, Cenvat Credit availed in agricultural division, details of weighment income and grading charges and details of cenvat credit availed all for the period 2014-15 & 2015-16. The reply to this letter reveals that all those details were provided with the specific emphasis that the tax liability qua the weighment income as a part of the Cargo Handling Services as being provided to the clients of the appellant, has duly been discharged and there has been no income in the agricultural division. The copies of ST 3 Returns for the period in dispute were also provided. Perusal thereof makes it apparent that despite availing the benefit of exempted services, the appropriate duty seems to have been paid by the appellant as far as the weighment income as a part of Cargo Handling Service is concerned. Perusal of the orders of the adjudicating authorities below seems to be absolutely silent qua the payment of duty / tax as shown in the ST-3 Returns. Apparently the silence is due to no such submission/argument on part of the appellant to this aspect. However, still the requisite document was very much on record. Show cause notice makes it clear that the entire demand is based on the details as were asked by the letter of February, 2016.

6. In the given circumstances, the absence of adjudicating authorities below qua the ST-3 Returns as provided by the appellant alongwith aforesaid reply and completely ignoring the same while solely relying upon Section 66D sub clause (3) of the Finance Act seems to be an error apparent on record. Resul

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tantly, the present is opined to be a fit case for remand. The Adjudicating authority below is required to look into all the documents as that of Service Tax Returns of the impugned period and after re-assessing those documents then to adjudicate the controversy in question about alleged nonpayment. Appeal accordingly stands allowed by way of remand. 7. At this stage, I do not deem it appropriate to decide on merit the issue of limitation and suppression of facts. The Adjudicating authorities are free to take up a fresh decision on all the issues involved herein. [Dictated and pronounced in the Open Court]