N. Kannan Vs. Cce, Madurai - Court Judgment

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CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Chennai
Decided OnMay-27-2011
Case Number ST/S/8/2011 and ST/8/2011 (Arising out of Order-in-Appeal No. 449/2010 dated 29.9.2010 passed b
Judge THE HONOURABLE DR. CHITTARANJAN SATAPATHY, TECHNICAL MEMBER
AppellantN. Kannan
RespondentCce, Madurai
Advocates:For the Appellants: Smt. G. Vardhini, Advocate. For the Respondent: C. Rangaraju, SDR.
Excerpt:
1. heard both sides. 2. the learned counsel appearing for the appellants states that the lower appellate authority has considered the claim of the appellants that no service tax is payable by the individual appellant prior to 1.5.2006 as the amendment including “any person” made in finance act, 2006 was effective only from 1.5.2006. she further states that for the period of dispute from 1.5.006 to 30.9.2006 the appellants have paid a tax amount of rs.24,684/- after taking into account the fact that they are eligible for the small scale exemption of rs. four lakhs. she also states that before quantifying the tax amount, the lower appellate authority has not allowed the small scale exemption and has given no finding in that regard though in paragraph 8 he has noted the claim of the appellants for the exemption. 3. heard the learned shri c. rengaraju. 4. considering the fact that the appellants have paid tax amounting to rs.24,684/-, the requirement of predeposit of the balance amount is waived and the appeal is taken up for final disposal with the consent of both sides. since the lower appellate authority has recorded the claim of the appellants regarding small scale exemption but has not considered the same, the impugned order cannot be sustained to that extent. hence the same is set aside and the matter is remanded to the original authority, with the consent of both sides, for redetermining the tax amount payable after considering the appellant’s claim for small scale exemption. the appeal is thus allowed by way of remand. the original authority shall give an adequate opportunity of hearing to the appellants before passing a fresh order. with the consent of both sides, the department’s appeal no. st/7/2011 is directed to be listed on 31.5.2011. both sides to take notice.
Judgment:

1. Heard both sides.

2. The learned counsel appearing for the appellants states that the lower appellate authority has considered the claim of the appellants that no service tax is payable by the individual appellant prior to 1.5.2006 as the amendment including “any person” made in Finance Act, 2006 was effective only from 1.5.2006. She further states that for the period of dispute from 1.5.006 to 30.9.2006 the appellants have paid a tax amount of Rs.24,684/- after taking into account the fact that they are eligible for the small scale exemption of Rs. four lakhs. She also states that before quantifying the tax amount, the lower appellate authority has not allowed the small scale exemption and has given no finding in that regard though in paragraph 8 he has noted the claim of the appellants for the exemption.

3. Heard the learned Shri C. Rengaraju.

4. Considering the fact that the appellants have paid tax amounting to Rs.24,684/-, the requirement of predeposit of the balance amount is waived and the appeal is taken up for final disposal with the consent of both sides. Since the lower appellate authority has recorded the claim of the appellants regarding small scale exemption but has not considered the same, the impugned order cannot be sustained to that extent. Hence the same is set aside and the matter is remanded to the original authority, with the consent of both sides, for redetermining the tax amount payable after considering the appellant’s claim for small scale exemption. The appeal is thus allowed by way of remand. The original authority shall give an adequate opportunity of hearing to the appellants before passing a fresh order. With the consent of both sides, the Department’s appeal No. ST/7/2011 is directed to be listed on 31.5.2011. Both sides to take notice.