1. Heard both sides. The appellants are a Public Sector Undertaking.
Since, no COD (Committee on Disputes) clearance was obtained earlier, the appeal was dismissed. In the mean time, the COD clearance has been obtained and hence the order of dismissal dated 10.11.04 is recalled and the appeal is restored to its original number. The MA for ROA (Restoration of Appeal) is allowed.
2. The appellants have also filed a Miscellaneous Application (MA) for Condonation of Delay (COD). We find that the verification clause in the appeal memorandum, EA-3 form has been signed on 15^th July, 2004, which is much after the stated date of filing the appeal. The ld. Sr.
Advocate explains that initially only one copy of the appeal was filed and upon the defects being pointed out, the appellants have filed four copies of the appeal which seems to be a reason why the subsequent date has been mentioned in the copies of the appeal filed subsequently. We find that there is a few days delay in filing the appeal. The ld. DR has no objection to the delay being condoned. We condone the delay. MA for COD is thus allowed.
3. Shri Biren Poddar, ld. Sr. Advocate appearing for the appellants, states that the entire amount of demanded tax has been paid by the appellants and hence we dismiss the stay petition as the same is infructuous.
4. With the consent of both sides, we proceed to hear and decide the appeal. We find that in this case, the jurisdictional Assistant Commissioner/Deputy Commissioner has not heard the appellants nor has he passed a speaking order on the disputed issue, namely, whether the drilling charges recovered by the appellants are liable to service tax.
The appellants have (SIC) against the purported (SIC) order passed by the Superintendent before the under appellate authority. The ld. Sr.
Advocate states that specific service tax has been levied on drilling charges only w.e.f. 10.9.04 and hence no tax can be levied on such charges for the impugned period, 1997-1998. He also states that they are not contesting levy of tax on the other charges recovered by them from their customer as consulting engineer.
5. In view of the fact that the jurisdictional Assistant Commissioner/Deputy Commissioner has not heard the appellants and has not passed a speaking order, the impugned order-in-appeal passed by the lower appellate authority on the purported assessment order passed by the Superintendent without taking into the account fact that specified tax on drilling charges (SIC) has been imposed on 10.9.04 and without considering the various aspects, if the case including the value of the services liable to service tax, requires to be set aside. Hence, we set aside the same and remand the matter to the jurisdictional Assistant Commissioner/Deputy Commissioner to provide an adequate opportunity of hearing to the appellants, to take into account the finally audit amounts received by the appellants from their customer and also to consider any other pleading to be made by the appellants in respect of this case and to pass a speaking order.