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TMI Blog2013 (10) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... e were any contrary decisions considered by him for this purpose - Similarly there were no findings as to why extended period can be invoked in this case and why penalties should be imposed - To consider an appeal against an order, there should be some reasoning in the order which can be considered whether it was appropriate or not. The decision in the case of Sri Bhagavathy Traders [2011 (8) TMI 430 - CESTAT, BANGALORE] is not relevant since the ocean freight is nothing but reimbursement of actual expenditure and when the Steamer Agent collecting the freight on behalf of the shipping company and charging his commission separately it is nothing but a reimbursement of the cost. It was also submitted that in majority of the cases the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the original adjudicating authority. Therefore, we waive the requirement of pre-deposit and take up the appeal itself for final decision. 2. Before proceeding, we have to take note of the fact that miscellaneous application has been filed by the appellant to produce additional evidence. It was submitted by the learned counsel that the additional evidence is nothing but the proceedings before the original adjudicating authority which would make it clear that none of their submissions regarding the merits of the demand, the precedent decisions on the issue, orders passed within the Commissionerates and the Commissioner (Appeals) orders thereon and limitation have not been considered by the Commissioner at all. We find that these additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Commissioner's order is appropriate and correct. He draws our attention to the observations of the Commissioner that all the decisions cited by the appellant are irrelevant and submits that this is sufficient and shows that Commissioner has applied his mind. As regards the decision in the case of Gudwin Logistics, he would rely upon the decision of the Hon'ble Supreme Court in the case of Association of Leasing Financial Service Companies vs. UOI: 2010 (20) S.T.R. 417 (S.C.) and the decision of the Tribunal in the case of Sri Bhagavathy Traders vs. CCE: 2011 (24) S.T.R. 290 (Tri.-LB). He submits that in view of the two decisions of the Hon'ble Supreme Court cited by him, the decision of the Tribunal in the case of Gudwin Logistic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him for this purpose. Similarly there are no findings as to why extended period can be invoked in this case and why penalties should be imposed. To consider an appeal against an order, there should be some reasoning in the order which can be considered whether it is appropriate or not. In the, absence of any reasoning in the order, it becomes difficult to consider the same in appeal. In these circumstances, we find that the matter is required to be remanded to the original adjudicating authority. 6. However, before doing so, it is necessary for us to consider the submissions of the learned AR. We find that the two decisions cited by the learned AR are not relevant to the subject before us. In the case of Association of Leasing Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of taxable services referred to in Section 65(105)(zm) read with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase is within the legislative competence of the Parliament under Entry 97, List I of the Seventh Schedule to the Constitution. Accordingly, the appeals are dismissed with no order as to costs." As regards the second decision cited in the case of Sri Bhagavathy Traders, learned AR read out para 6.1 and submitted that this is relevant. Para 6.1 of the decision is reproduced below. "6.1 Having analyzed the various decisions cited on behalf of the assessee and on behalf of the department, it would be appropriate to consider the scope of term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of goods and raw materials used in the manufacture is considered as an essential element. There cannot be any dispute. Further the decision in the case of Sri Bhagavathy Traders was basically to consider what exactly can be considered as "reimbursement" and what cannot be considered as reimbursement. There is no dispute on the taxability of the relevant element at all. According to Rule 5 (2), the expenditure or costs incurred by the service provider as pure agent of the recipient of service shall be excluded from the value of taxable service on fulfillment of the condition therein. In this case, the ocean freight collected by the Steamer Agent is passed on to the shipping company who does the transportation activity. Even if the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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