ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against the Order-in-Appeal No. 151 /2005-C.E., dated 19-7-2005 passed by the Commissioner of Central Excise (Appeals), Mangalore. A misc. application for additional grounds has also been submitted.
2. On a careful consideration, we allow the misc. application for submitting additional legal grounds.
3. The appellant provided ‘Rent-a-cab’ service to M/s. Manipal Informatics. Revenue proceeded against the appellant on the ground he did not discharge the Service Tax liability. The Original Authority passed an order confirming a demand of Service Tax of Rs. 1,22,781/- along with interest. He imposed a penalty of Rs. 500/- under Section 75A, Rs. 500/- under Section 77 and Rs. 1,09,258/- under Section 78 of the Finance Act, 1994. The appellant is aggrieved over the impugned order of the original authority. Therefore, he approached the Commissioner (Appeals). The Commissioner (Appeals) upheld the order of the original authority. Hence, the appellant has come before this Tribunal for relief.
4. Shri Sunil Kumar Jain, the learned Chartered Accountant, appeared for the appellant and Shri Anil Kumar, the learned JDR, for the Revenue.
5. We heard both sides. It is seen that the appellant provided Rent-a-cab service to M/s. Manipal Informatics. However, before the lower authority, he pleaded that his case would be covered by para 4 of the Board’s ST Circular No. 56/5/2003 dated 25-4-2003, according to which, when secondary services are provided to primary services and when such services are exported, there is no liability for payment of Service Tax in respect of such secondary services which get merged or consumed by the primary services. On the strength of the above-mentioned Circular, they wanted to avail the exemption. But, the learned lower authority gave a finding to the effect that M/s. Manipal Informatics are not any service providers because their activity is only development of software and software is treated as goods. In that sense, he held the view that they are not provider of any export services and therefore, the benefit of para 4 of the said Board’s Circular would not be applicable to the appellant. On this ground, the exemption requested for by the appellant was denied and he passed the original order confirming the Service Tax demand along with all the penalties. However, the appellate authority has not given any finding on this issue. This point has not been examined. Therefore, there is much contention in the submission of the learned Chartered Accountant Shri Sunil Kumar Jain that the appellate authority has gone beyond the scope of the original order in denying the benefit of the exemption, which may be available to the appellant on a proper appreciation of facts. For this reason, we have no other option but to remand the entire issue to the Commissioner (Appeals) for giving a finding on the appellant’s contention that they provided service to M/s. Manipal Informatics who, in turn, is provider of export services. The appellant has contended that M/s. Manipal Informatics provide service of telemarketing, call center, which are export services. These facts have not been properly examined by the Commissioner (Appeals). Therefore, we remand the matter to the Commissioner (Appeals) to give a finding on this issue and pass an order in accordance with law within a period of four months from the date of receipt of this order. On the basis of the finding whether M/s. Manipal Informatics provided export seivices, a decision has to be arrived at regarding the entitlement of the appellant to the benefit mentioned in para 4 of the Board’s Circular. With the above observations, we remand the matter to the Commissioner (Appeals). Thus the appeal is allowed by way of remand.
(Pronounced in open Court on 23-8-2007)