INDIA TRADE PROMOTION Vs. CCE, NEW DELHI

JUDGEMENT

(1.) THE matter is posted today for considering the waiver of predeposit of the Service Tax amounting to Rs.493.19 lacs and penalty of Rs.88,300/ - imposed on M/s. India Trade Promotion Organisation. As the issue involved is in narrow compass we take up the appeal itself for disposal with the consent of both the sides.

(2.) SHRI V. Lakshmi Kumaran, learned Advocate, submitted that the Applicant is engaged in the mission of developing and promoting exports, imports and upgradation of technology through the main medium of Trade fares held in India and abroad; that the activities of ITPO are promotional in nature and it is not a profit oriented organisation; that the Commissioner of Central Excise, Delhi -1 has confirmed the demand of service tax and imposed penalty holding that they are liable to service tax as mundap keeper as they provide the service of space/building/structure to the participants. The learned Counsel further mentioned that as provided under Section 85 of the Finance Act, 1994, an appeal against any assessment passed by the Central Excise Officer under Section 71, 72 or 73 lies with the Commissioner of Central Excise (Appeals); that accordingly they filed the appeal with the Commissioner (Appeals), New Delhi who under the impugned Order dismissed the appeal holding that the Commissioner (Appeals) does not have jurisdiction to hear the appeal against the Order passed by a Commissioner of Central Excise; that the Appellate Tribunal in the case of Bharti Cellular LTD. vs. CCE, Delhi -1, 1999 (107) ELT 181 (Tribunal) has held that in view of the clear language of Section 86 (1) of the Finance Act, 1994 the appeal against the Commissioner's Order will not lie with the Appellate Tribunal unless and until the Order has been passed by the Commissioner under Section 84 of the Finance Act. The Tribunal further held in the said case that as the Order had been passed in terms of Section 73 of the Act the appeal will not lie to the Tribunal. The learned Counsel, however, submitted that as the Commissioner (Appeals) has dismissed the appeal filed by them as without jurisdiction the Tribunal is competent to hear the appeal and to pass the Order in the matter. The learned Counsel thereafter argued the matter on merit also.

(3.) ON the other hand Shri R.C. Sankhla, learned D.R., submitted that as the Commissioner (Appeals) has not heard the matter on merit, the matter may be remanded to the Commissioner (Appeals) for hearing the same on merit.