2011 (9) TMI 533 - AT - Service Tax

Confirmation of demand of service tax with penalty - Cross Objections - assessee did not file appeal against order in original but filed cross objection against appeal filed by revenue before commissioner (appeal) - Commissioner (appeals) rejected the appeal of the revenue as well as cross objection as not maintainable - held that - In view of Southern Auto Products vs. CCE, (2007 -TMI - 75457 - KARNATAKA HIGH COURT). Decided in favor of assessee.

Summary

Issues:
1. Imposition of Service Tax and penalty on the appellants for alleged services falling under specific categories.
2. Appeal filed by Revenue seeking imposition of penalty under Section 77.
3. Rejection of cross objection filed by the appellant by Commissioner (Appeals) on the grounds of maintainability.
4. Contention regarding the direction from Commissioner (Appeals) to file cross objection and applicability of Karnataka High Court judgment on maintainability of cross objections.
5. Lack of opportunity for the appellants to contest the non-maintainability of cross objection.
6. Decision to set aside the impugned order and remand the matter to Commissioner (Appeals) for a decision on merits.

Analysis:
1. The proceedings were initiated against the appellants for the confirmation of Service Tax and imposition of penalties on the grounds of services falling under erection, commissioning, installation services, and GTA services. The original adjudicating authority confirmed the demand of Service Tax and Cenvat credit, along with penalties under Section 78 and Section 77, and Rule 15(4).

2. The Revenue filed an appeal seeking the imposition of penalty under Section 77, which was not appealed against by the appellants. However, the appellant received a letter from the office directing them to file a cross objection against the impugned order. The Commissioner (Appeals) rejected the Revenue's appeal but also rejected the cross objection filed by the appellant on the grounds of non-maintainability.

3. The appellant contended that they filed the cross objection based on the direction of the Commissioner (Appeals) and highlighted the lack of disclosure of reasons for rejection by the appellate authority. Referring to a Karnataka High Court judgment, the appellant argued that cross objections filed at the direction of the Commissioner (Appeals) are maintainable, contrary to the impugned order.

4. The Tribunal noted that the appellants were not given a chance to contest the non-maintainability of the cross objection before the Commissioner (Appeals), preventing them from citing the Karnataka High Court judgment. Considering the legal position established by the High Court judgment, the Tribunal held that the cross objections filed by the appellants were maintainable and set aside the impugned order, remanding the matter to the Commissioner (Appeals) for a decision on merits.

5. The stay petition and appeal were disposed of accordingly, with the Tribunal's decision to remand the matter for further consideration by the Commissioner (Appeals) based on the maintainability of the cross objections and the legal precedent cited.