2011 (4) TMI 915 - AT - Service Tax

Waiver of pre-deposit - Time barred - Held that - The remand order dated 13.08.2009 passed by this Tribunal virtually nullifies the said proceedings inasmuch as the Tribunal set aside the original remand order of the appellate Commissioner with a direction for fresh decision on merits by the appellate Commissioner - request the Commissioner (Appeals) to pass a speaking order pursuant to remand order dated 13.08.2009, within a period of three months from the date of receipt of certified copy of this order.

Summary

Issues:
- Jurisdiction of lower appellate authority in remanding the case
- Interpretation of the definition of "consulting engineers service"
- Validity of orders passed by lower authorities post remand

Jurisdiction of lower appellate authority in remanding the case:
The Appellate Tribunal examined the case fit for summary disposal after dispensing with pre-deposit. The Tribunal highlighted that this was the second round of litigation on the same subject matter. The Tribunal referred to a previous remand order passed in the case and analyzed the jurisdiction of the lower appellate authority in remanding the case to the original authority. The Tribunal noted that the lower appellate authority had exceeded its jurisdiction by remanding the case. The Tribunal referred to a Supreme Court decision regarding the powers of the Commissioner(Appeals) to remand matters back to the adjudicating authority. The Tribunal concluded that the service rendered by the appellant through their electrical engineers fell within the ambit of "taxable service" under the Finance Act, 1994. The Tribunal set aside the impugned order and directed the Commissioner(Appeals) to quantify the service tax leviable from the appellant and reconsider the penalty issue.

Interpretation of the definition of "consulting engineers service":
The Tribunal analyzed the definition of "consulting engineers service" under section 65(31) of the Finance Act, 1994. It was noted that the service provided by the appellant's electrical engineers to consumers of electricity fell within the scope of taxable service. The Tribunal dismissed the appellant's argument that they were rendering a service to themselves, emphasizing that ownership of the property had no bearing on whether the service was taxable. The Tribunal allowed the appeal by way of remand to the Commissioner(Appeals) for further proceedings.

Validity of orders passed by lower authorities post remand:
The Tribunal observed that there was one more round of litigation before the lower authorities after the original remand order was passed. The Tribunal nullified the proceedings that arose from the original remand order and set aside all the subordinate proceedings. The impugned order was also set aside, and the Commissioner (Appeals) was directed to act upon the Tribunal's remand order within three months. The Tribunal requested the Commissioner (Appeals) to pass a speaking order in light of the remand order. The appeal was disposed of, and the stay application was also disposed of.