Custom, Excise & Service Tax Tribunal
M/S. Chaturbhuj Gupta, Contractor vs C.C.E. Jaipur-I on 3 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/1731/2011-CU(DB)
[Arising out of Order-in-Appeal No. 340(DKV)ST/JPR-I/2011 dated 08.08.2011, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri V. Padmanabhan, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Chaturbhuj Gupta, Contractor .Applicants
Vs.
C.C.E. Jaipur-I .Respondent
Appearance:
Shri Rahul Lakhwani, Advocate for the Applicants Shri Ranjan Khanna, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Date of Hearing: 03.11.2016 FINAL ORDER NO. 54996/2016-CU(DB) Per Archana Wadhwa:
After hearing both the sides, we find that the service tax stand confirmed against the appellant under the category of construction of residential complex, which the appellant have constructed in terms of agreement with M/s. Rajasthan Housing Board.
2. The first objection of the Ld. Advocate is that the show cause notice proposed confirmation under industrial and commercial construction services which have been found to be not satisfying the criteria of the said definition and as such the adjudicating authority deviated from the proposal made in the show cause notice and confirmed the demand under construction of residential complex. Ld. Advocate further submits that they were working under the works contract and as such in terms of the latest decision of Honble Supreme Court in the case of CCE Vs. L&T 2015 (39) STR 913 (SC), such works contracts were not leviable to service tax prior to 01.06.2007. He further submits that they have constructed individual houses and as such Tribunals decision in the case of Macro Marvel Projects Ltd. Vs. CCE Chennai -2008 (12) STR 603 (Tri-Chennai) as confirmed by Honble Supreme Court reported as 2012 (25) STR J154(SC), such services would not satisfy the definition of construction of residential complex. He also referred to various other decisions of the Tribunal.
3. In as much as some of the decisions referred to and relied upon by the Ld. Advocate, were not before the Adjudicating authority having been delivered, subsequent to passing of the present impugned order we deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision in the light of the law declared in the above referred judgments.
4. We make it clear that we find force in the appellants contention that the Adjudicating authority cannot travel beyond the show cause notice. The adjudicating authority having already held that the appellant did not fall under the category of Industrial or commercial construction services and the Revenue having not challenged the said part of the order, this fact would also be kept in mind by Adjudicating authority while deciding the matter afresh.
5. The appeal is allowed by way of remand.
[Dictated and Pronounced in the open Court]
(V. Padmanabhan) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Bhanu
2
ST/1731/2011-CU(DB)