international Clearing and Vs. Commr. of C. Ex. - Court Judgment

Excerpt:
.....before the first appellate authority that the above amounts did not represent income from any taxable service under the finance act, 1994. ld.commissioner (appeals), in his order, stated as under :- ...i do not find any strength in appellant's argument that the said services will not fall within the purview of 'taxable service', since, as per section 67 of the finance act, 1994, the value of taxable service shall be the gross amount charged by the service provider for the custom house agency service rendered by him. hence, i uphold the order of the lower authority.we find that the ld. commissioner (appeals) has not stated his reasons for rejecting the assessee's argument that the services in question were not taxable services. we are unable to consider his order as a speaking order.....

Judgment:
1. After hearing both sides, we are of the view the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal for final disposal.

2. The appeal is against an order passed by the Commissioner (Appeals) upholding an order of the original authority. The original authority had confirmed a demand of service tax under Section 73 of the Finance Act, 1994 against the appellants qua Customs House Agent for the period 9-9-97 to 31-3-2002. It charged interest on the tax under Section 75 and also imposed a penalty on the party under Section 76 for the delay of payment of tax. The demand confirmed by the original authority was on income generated under the head "Operation Surplus," which comprised amounts collected by the assessee in excess of their actual expenses from their clients and credited in their books of account. Against the finding of the adjudicating authority, the appellants contended before the first appellate authority that the above amounts did not represent income from any taxable service under the Finance Act, 1994. Ld.

Commissioner (Appeals), in his order, stated as under :- ...I do not find any strength in appellant's argument that the said services will not fall within the purview of 'Taxable Service', since, as per Section 67 of the Finance Act, 1994, the value of taxable service shall be the gross amount charged by the service provider for the Custom House Agency service rendered by him. Hence, I uphold the order of the lower authority.

We find that the ld. Commissioner (Appeals) has not stated his reasons for rejecting the assessee's argument that the services in question were not taxable services. We are unable to consider his order as a speaking order on the substantive issue in the case. Therefore we set aside the impugned order and direct the Commissioner (Appeals) to pass a speaking order on all the issues in the case in accordance with law after giving the assessee a reasonable opportunity of being heard. The appeal stands allowed by way of remand.