Karnataka High Court
The Commissioner Of Central ... vs M/S Vathika International ... on 12 January, 2021
Author: Alok Aradhe Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
C.E.A. NO.1 OF 2017
BETWEEN:
THE COMMISSIONER OF CENTRAL EXCISE
& SERVICE TAX,
7TH FLOOR, TRADE CENTRE,
BUNTS HOSTEL ROAD,
MANGALURU-575003.
...APPELLANT
(BY SRI. K.V.ARAVIND, ADVOCATE)
AND:
M/S VATHIKA INTERNATIONAL TRAVELS
B-3, CITY PLAZA,
KUDMAL RANGA RAO ROAD,
MANGALURU-575003.
...RESPONDENT
(NOTICE SERVED TO RESPONDENT BUT UNREPRESENTED)
THIS CENTRAL EXCISE APPEAL IS FILED UNDER SECTION
356 OF THE CENTRAL EXCISE ACT, ARISING OUT OF ORDER
DATED 15.06.2016 PASSED IN MISC.ORDER NO.20263/2016,
PRAYING TO: (I) ANSWER THE SUBSTANTIAL QUESTIONS OF
LAW FRAMED ABOVE IN FAVOUR OF THE APPELLANT IN THE
2
INTEREST OF JUSTICE AND EQUITY. (II) SET ASIDE THE
IMPUGNED MISC.ORDER NO.20263/2016 DATED 15.06.2016
AND ORDER IN APPEAL NO.20236/2015 DATED 21.01.2016
PASSED BY THE CESTAT, SOUTH ZONAL BENCH, BENGALURU
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
ALOK ARADHE, J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.K.V.Aravind, learned counsel for the appellant.
Learned counsel for the respondent though served
remained absent.
This appeal under Section 35G of the Central Excise
Act, 1944 read with Section 83 of the Finance Act, 1994
has been filed by the revenue against the order dated
15.06.2016 and 21.01.2016 passed by the Customs,
Excise and Service Tax Appellate Tribunal, South Zonal
Bench, Bengaluru.
2. The facts giving raise to filing of this appeal
briefly stated are that the Assessee is a firm registered
under the provisions of the Central Excise Act, 1944
(hereafter referred to as the 'Act') as a provider of "Tour
Operator Services". The respondent is engaged in
providing package tours to domestic destination as well as
international tourist spots.
3. During the Departmental Audit, it is noticed
that respondent had engaged tour operators / co-
ordinators in the respective Countries for assisting the
tourists and service charges were being paid to the foreign
counterparts. As the services rendered by the respondent
were taxable under Section 66A of the Finance Act, 1994
read with Rule 3 of the Taxation of Services (provided from
outside India and received in India) Rules, 2006, a show
cause notice was issued to the respondent by which
service tax was demanded at Rs.14,13,297/- for the period
from 2007-08 to 2011-12. It was also noticed that the
respondent had made remittance of Rs.1,08,52,990/- for
import of services for the period 2007-08 to 2010-11 and
the provision of Section 66A of the Finance Act, 1994 were
attracted. Therefore, the respondent was asked to show
cause as to why the demand of Rs.12,44,126/- should not
be made and recovered from the assessee. After hearing
the respondent, the adjudicating authority passed an order
on 10.03.2014, by which, the liability was determined at
Rs.6,41,311/-.
4. Being aggrieved, the respondent thereupon
filed an appeal before the Commissioner (appeals),
Mysuru.
5. The Commissioner (Appeals) by an order dated
28.10.2014, by placing reliance on the decision of the High
Court of Delhi in Travelite (India) Vs. Union of India
and Ors. decided on 04.08.2014 allowed the appeal
preferred by the respondent. The revenue thereupon filed
an appeal before the Customs, Excise and Service Tax
Appellate Tribunal ('Tribunal' for short) against the order
passed by the Commissioner (Appeals). The Tribunal by a
final order dated 21.01.2016, dismissed the appeal filed by
the revenue holding that the tax income involved was less
than Rs.10,00,000/- and the appeal is not maintainable in
view of the Circular dated 17.12.2015. Thereafter, the
revenue filed the Miscellaneous Application before the
Tribunal seeking restoration of the appeal. However, the
aforesaid applications were rejected by an order dated
21.01.2016. In the aforesaid factual background, this
appeal has been filed.
6. Learned counsel for the revenue pointed out
that the decision of the Delhi High Court in Travelite
(India) Vs. Union of India and Ors. (supra) has been
stayed by an order dated 18.12.2014 passed by the
Supreme Court and the matter is pending before the
Supreme Court. It is therefore, submitted that the orders
passed by the Tribunal as well as the order passed by the
Commissioner (Appeal) be quashed and the matter be
remitted to the Commissioner (Appeals) to decided the
appeal in the light of the decision which may be rendered
in the appeal preferred by the revenue which is pending
before the Supreme Court.
7. We have considered the submission made by
the learned counsel for the revenue.
8. Admittedly, the order passed by the
Commissioner (Appeals) is based on the decision of the
High Court of Delhi in Travelite (India) Vs. Union of India
and Ors., (supra). The aforesaid decision has been stayed
by the Supreme Court by order dated 18.12.2014
reported in [2015] 53 taxmann.com 238 (SC) and the
matter is pending before the Supreme Court. Therefore, in
the factual situation of the case, no useful purpose would
be served by keeping the appeal pending before this Court.
In the circumstances of the case, the orders passed by the
Tribunal dated 21.06.2016 and 15.06.2016 passed by the
Tribunal as well as the order dated 28.10.2014 passed by
the Commissioner (Appeals) are hereby quashed and the
Commissioner (Appeals) is directed to await the orders
passed by the Supreme Court in the Special Leave Petition
pending before it and to decide the appeal before it in the
light of the decision which may be rendered by the
Supreme Court in the aforesaid special leave petition.
In the result, the appeal is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
GH
