ORDER
P.G. Chacko, Member (J)
1. The impugned order passed by the Commissioner in his revisional jurisdiction under Section 84 of the Finance Act, 1994 demands Service Tax of over Rs. 1.6 crores from the appellants for the period July to December, 2003. The demand is on “erection, installation and commissioning service” provided by the appellants through their subcontractors to their customers in connection with installation of lifts/escalators in the latter’s premises during the above period. It is the case of the appellants that, during the above period any service relating to installation of lifts/escalators was not taxable inasmuch as the relevant provision viz. Clause 39(a) of Section 65 of the Finance Act, as it stood during the said period, did not contain anything which could be construed as a service relating to lifts/escalators. It is submitted that ‘erection, installation and commissioning services’ relating to lifts/escalators became taxable only with effect from 16-6-2005 with the substitution of a new Clause 39(a) for the old 39(a). It is the appellants’ case that this amendment is not to be construed as clarificatory with retrospective effect. Learned Counsel for the appellants has also contended that, on account of non-taxability of the services rendered by them to their customers during the above period, they were entitled to refund of an amount of over Rs. 20.5 lakhs and that this claim is pending. On the other hand, learned SDR submits that the original authority’s order finalising provisional assessments was not challenged by the appellants and, therefore, they are not entitled to claim anything other than the relief granted by that authority. Learned Counsel’s answer to this argument is that the whole issue was before the Commissioner in his revisional jurisdiction which was wide enough to deal with the grievance of the assessee against the original authority’s decision as well. It is further submitted that, on an identical issue, the same Commissioner rendered a decision in favour of another party. The reference is to Order-in-Original No. 6/2006 dated 20-3-2006 passed by the same Commissioner holding that M/s. Johnson Lifts Private Ltd. who had also rendered similar service to their customers during a comparable period, were not liable to pay Service Tax on such service. Learned SDR is unable to say whether this order of the Commissioner has been appealed against by the department.
2. After considering the submissions, we find, we are dealing with interesting issues in this case. The original authority was finalising provisional assessments and, in terms of its order, certain amount of tax was found to have been paid in excess, which was appropriated towards other Service Tax demands. Admittedly, this finalisation was not challenged by the assessee in appeal. However, the Commissioner proposed to revise the finalisation of provisional assessments done by the lower authority under Section 84 ibid. The proposal for this revision was made through a show-cause notice which was comprehensive enough to take into account all relevant exemption Notifications viz No. 12/2003-S.T. and 19/2003-S.T. The original authority had granted the benefit of the former. The revisional authority disproved it and chose to grant the benefit of the latter Notification. Apparently, the revisional authority dealt with the issue comprehensively in exercise of his revisional jurisdiction which is only a species of appellate jurisdiction. It could, therefore, be argued that, by not appealing against the original authority’s order of finalisation of provisional assessments, the assessee was not materially disadvantaged before the revisional authority, who was exercising a jurisdiction, which was a species of appellate jurisdiction. In this view of the matter and having regard to the fact that the same Commissioner chose to absolve another assessee from tax liability on a similar set of facts for a comparable period, we are inclined to grant waiver of predeposit and stay of recovery in respect of the amount of tax demanded in the impugned order. It is ordered accordingly.
3. Having regard to the high stake involved in the case, we are inclined to dispose of the appeal itself as early as possible. Accordingly, the appeal is directed to be posted to 22-3-2007 for final hearing.
(Dictated and pronounced in open Court)