ORDER
C.N.B. Nair, Member (T)
1. When the Stay Application was heard we found that the appeal itself is required to be disposed of. Accordingly, we proceed with the appeal, after dispensing with the requirement for pre-deposit.
2. The impugned order has confirmed the Service Tax demand of over Rs. 5.5 Crores (Rupees Five Crores and Fifty lakhs only). This is in relation to alleged services received by the Appellant from foreign firms. The submission of the Id. Counsel for the Appellant is that the alleged services were received under many agreements. It is being pointed out that some of the agreements did not relate to services at all. It is being pointed out that 16 show cause notices had been issued to the appellant and by adjudicating all the show cause notices under one order, the adjudicating authority has failed to consider the appellant’s contention in relation to each of the contracts. It is being pointed out that detailed replies had been filed in regard to each of the show cause notices; but the Commissioner has erroneously treated them as relating to services and also holding that the appellant has not contested the fact that all the contracts related to services. Reference is being made in this connection to replies field against each of the show cause notices and also the written notes filed before the adjudicating authority.
3. The 1d. Counsel also has stated in his submissions that the appellant was not a person authorized by the foreign service provider (to pay the tax) in order to become liable for taxes payable by the foreign firms. Reliance in this connection is being placed on the decisions of the Tribunal in the case of Jubilant Organosys Ltd. v. Commissioner of Central Excise, Meerut-II reported in 2006 (3) S.T.R. 493 (Tri.-Del), Bajaj Auto Ltd. v. CCE, Aurangabad and Motherson Sumi Systems Ltd. reported in 2006 (1) S.T.R. 307 (Tri.-Del).
4. Ld. SDR would point out that the legal possession about the liability of a recipient remains settled by the judgment of the Hon’ble High Court of Kerala in the case of Kerala State Electricity Board – 2006 (3) S.T.R. 625 (Kerala). To this, the reply of the ld. Counsel for the appellant is that that judgment is in the context of the specific agreement between the parties and has no general application.
5. Upon perusal of the record and consideration of the points made by both sides, we are of the opinion that each of the show cause notices in the present case was required to be adjudicated in the facts relating to it. This is so because each agreement has different clauses in relation to liabilities. Further, the appellant has also contended that some of the agreements related to transfer of properly and not rendering of service. Clearly, by combining the proceedings, the adjudicating authority has failed to take into account the peculiar facts of each transaction.
6. In view of what has been stated above, impugned order is set aside and the case is remitted back to the Commissioner for a fresh adjudication in accordance with our observations above. Needless to say, the appellant shall be given an opportunity to present its case in the adjudication. The appeal, is, thus, allowed by way of remand.
(Dictated and Pronounced in the open Court.)