2013 (2) TMI 804 - AT - Service Tax

Summary

Issues involved:
The issue involves the classification of service provided by the appellant as "Manpower Recruitment or Supply Agency" service, the imposition of service tax, and the eligibility for exemption under Notification No. 8/2005-S.T.

Classification of Service and Imposition of Service Tax:
The appellant, M/s. J.E. Engineering Works, undertook job work for their principal M/s. Tarang Engineering Pvt. Ltd. by fabricating and testing radiators. The department alleged that the service provided falls under "Manpower Recruitment or Supply Agency" service, leading to a demand for service tax. The appellant contended that the activity was job work exempted under Notification No. 8/2005-S.T. The adjudicating authority passed an ex parte order confirming the service tax demand, interest, penalties, and a fee. The lower appellate authority dismissed the appeal stating that the argument regarding job work exemption was not raised before the adjudicating authority.

Legal Point Raised by Appellant:
The appellant argued that the lower appellate authority did not consider the issue on merits but dismissed the appeal based on the premise that no new point can be raised before the Commissioner (Appeals). The appellant cited the decision of the Hon'ble Apex Court in the case of Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan, emphasizing that a point of law can be raised at any stage during appellate proceedings. The appellant requested a stay based on this argument.

Appellate Tribunal's Decision:
The Appellate Tribunal noted that the appellant had raised the plea of undertaking job work and claimed exemption under Notification No. 8/2005-S.T. before the adjudicating authority. The Tribunal held that the lower appellate authority should have considered this point of law regarding the leviability of service tax and eligibility for exemption. As the lower appellate authority failed to do so, the matter was remanded back to reconsider the appellant's plea and issue a speaking order after hearing the appellant. Consequently, the appeal was allowed by way of remand, and the stay application was disposed of.