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TMI Blog2014 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... rial construction services and erection and commissioning services are accepted, still there would be no demand liable to be paid by the appellants. 4. Learned Advocate submits that the above development was brought to the notice of the Commissioner and a request was made to keep the proceedings in abeyance till the decision of Hon'ble Supreme Court comes but the learned adjudicating authority has passed the impugned order, without considering their request and without affording opportunity of personal hearing to them. In view of the above, it is the contention of the learned Advocate that the matter be remanded to Commissioner for passing orders, after the decision of the Hon'ble Supreme Court on their appeal pending before the Hon'ble Supreme Court. 5. We note that the Commissioner has to pass order in de novo proceedings in terms of the direction as contained in the remand order of the Tribunal. The appeal against the said order is admitted by the Supreme Court. As such, it can be safely concluded that the entire issue is before the Hon'ble Supreme Court. Though we note that there is no stay of operation of the Tribunal's remand order but, to avoid multiplicity of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording this separate order for that reason. Firstly I propose to state the reasons why I agree that this matter has to be remitted back to the adjudicating authority. Then I propose to record the reason why I disagree with the order that the matter should be kept pending. 10. The facts of the case are that the appellant was providing different services to steel plants. According to them the services were divisible in the following categories : (a) Commercial or Industrial Construction Service; (b) Erection, Commissioning or Installation Service; (c) Consulting Engineers Service. 11. On the first two services, abatement from value of services to the extent of 67% available under Notification 1/2006-S.T. and tax need be paid only on the balance value of tax. In the case of third service tax need be paid on the full value of the service. If abatement is to be availed Cenvat credit on inputs, capital goods and input services used in providing such service cannot be availed. This is a restriction with reference to the service for which abatement is claimed and not with reference to all the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Whether any input credit has been claimed against Industrial and Construction services?" Extracts from Final Order dated 30-10-2009 "5. On careful consideration of the submissions from both sides and on perusal of the records including the verification report submitted in pursuance of the order dated 17-8-2009, we find that several submissions made by the appellants in the reply to the notice have not been considered in proper perspective. The crucial question is whether the appellants have rendered separate services of Consulting Engineer Service and the same has not been dealt. The submissions contained in the report of the various questions raised by the Tribunal should have been dealt with in the order of original authority. The order of the Commissioner as already observed in the order of the Tribunal dated 17-8-2009, appears cryptic and does not deal with all the issues adequately with reference to the various submissions made by the appellants. The order cannot be held to be speaking. In view of the above, we deem it proper to set aside the order of the Commissioner and remand the matter to the Commissioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for another round of adjudication and I agree with that part of the order recorded by Member (J). 17. Now I come to the reasons why I am not agreeing with the order to keep the matter in abeyance till the Apex Court decides the appeal before it. In the first place the order recorded by Member (Judicial), in substance amounts to temporarily stopping the proper implementation of the order of the Tribunal dated 31-10-2009 which could not be carried out properly due to non-cooperation of the appellants. When the appellants filed appeal before Apex Court, it was open to the appellants to request the Apex Court to stay the order of the Tribunal. The appellants did not either pray for stay or the Hon'ble Apex Court did not grant it. Since the order of the Tribunal was not stayed by the Apex Court, the most reasonable inference is that the Apex Court has noted that the matter is remanded for de novo consideration and the results of de novo proceedings may be of use in deciding the matter before the Hon'ble Apex Court as and when the matter is taken up for final hearing by the Hon'ble Apex Court. In either case, 'it is not proper for the Tribunal to pass such order stopping further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be kept pending till the Apex Court decides the appeal filed before it as directed by Member (Judicial). OR to give a direction to the appellant to take all pleadings along with supporting evidence before the adjudicating authority directing him to decide the issues afresh as per the remand order already passed by the Tribunal as opined by Member (Technical). (Pronounced in Court on 14-6-2012) Sd/- (Mathew John) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 20. The Registry may place the matter before the President, CESTAT for deciding whether the order can be issued only for the agreed part of the order or the point of difference need to be resolved by a third Member before issue of the order and if found necessary to take steps to resolve the point of difference. Sd/- (Mathew John) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 21. [Order per : D.N. Panda, Member (J)]. - When the appellant came in appeal against de novo adjudication order No. RPR/CEX-De-NOVO/14/2012, dated 29-2-2012, on consideration of the fact that such de novo adjudication arose out of remand order passed vide Final Order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in re-adjudication upon remand suggested by both Members. 25. It may be stated that there is no stay of operation of the order dated 30th October, 2009 passed by the Tribunal by Apex Court in Civil Appeal No. 1418 of 2010 which is agreed by ld. Counsel for the appellant on the date of hearing. 26. The reference is thus answered that the matter may go back to ld. Commissioner who shall grant fair opportunity of hearing to the appellant for pleading on fact, evidence and law for passing a reasoned and speaking order dealing entire pleading that may be made by the appellant. While passing the order if order of Apex Court comes up, ld. Commissioner shall have advantage of following that order. 27. Reference is disposed accordingly. Registry is directed to place the matter before the appropriate Bench for disposal of the appeal. (Pronounced in the open Court on 12-4-2013) Sd/- (D.N. Panda) Member (Judicial) FINAL ORDER 28. In view of the majority order, the impugned order is set aside and the matter remanded to the Commissioner for a fresh adjudication after taking into account all the evidence produced by the appellant and to pass appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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