Custom, Excise & Service Tax Tribunal
M/S S.V. Engineering Constructions vs Cc, Ce & St, Guntur on 4 August, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Division Bench Court I Appeal No. ST/954/2012 (Arising out of Order-in-Original No. 4/2012-S.Tax (Commissioner) dt. 23.01.2012 passed by CC, CE & ST, Guntur) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Honble Sh. Madhu Mohan Damodhar, 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? 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s S.V. Engineering Constructions ..Appellant(s) Vs. CC, CE & ST, Guntur ..Respondent(s)
Appearance Sh. Karan Talwar, Advocate for the Appellant.
Sh. Arun Kumar, Deputy Commissioner (AR), for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Honble Sh. Madhu Mohan Damodhar, Member(Technical) Date of Hearing: 04.08.2016 Date of Decision: 04.08.2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] Facts of the case as put forth by the appellant:
I) Appellant filed the present appeal against the impugned Order-in-Original dated 23.01.2012 passed by the Commissioner of Customs and Central Excise, Guntur wherein he has interalia confirmed an amount of Rs. 12,38,18,555/- under Section 73(1) of the Finance Act, 1994, along with interest liability thereof, and also imposed penalties.
II) Appellant is a partnership firm engaged in the business of executing civil works, registered with the service tax department under site formation and clearance, excavation and earthmoving and demolition service. M/s Engineering Projects (India) Ltd., New Delhi (herein after called as EPIL was awarded the work of blast hole drilling, blasting, loading, transportation, dumping etc., of overburden at Singareni Collieries Co. Ltd. EPIL sub-contracted the entire portion of the work to M/s B. Girijapathi Reddy & Co., Nellore (hereinafter referred to as main-contractor or BGR). However, due to urgency in completion of the work, EPIL insisted BGR to complete the work in the soonest possible time. Therefore, the main-contractor decided to split the work and sub-contracted a portion of the work to the Appellants.
III) The total value of work awarded to the Appellants by the main contractor in respect of the work of blast hole drilling, blasting, loading, transportation, dumping etc., of overburden for Singareni Collieries Co. Ltd., was for Rs. 21,38,33,814/- which was commenced by the Appellant in the year 2005 and completed by December, 2005. Out of the total, an amount of Rs. 8,72,00,687/- pertains to the period 15.04.2005 to 15.06.2005 when no service tax was leviable. An amount of Rs. 12,65,88,126/- pertains for the period 16.06.2005 to 15.12.2005 for which an amount of Rs. 3,38,94,298/- as service tax on the gross value of the amount was discharged by the main contractors.
IV) In the year 2007, BGR also was awarded a work of blast hole drilling, controlled blasting, loading, transportation, dumping etc., of overburden at Dorli Opencast Project-1 by M/s Singareni Collieries Company Ltd., Kothagudem. In order to complete the work quickly, BGR sub-contracted entire work to the Appellant on back to back basis.
V) The total value of work executed by the Appellant for Dorli Open Cast Project-1 is Rs. 103,25,25,166/-. The main contractor BGR has already discharged the service tax amount of Rs. 10,64,27,457/- on the gross value received by them from SCCL which includes the amount received by the Appellant. The main contractor has therefore, discharged service tax amount on the total value of the project which includes the value of the work awarded to the Appellant. The main contractor (BGR) has also further certified that they have discharged full amount of service tax on value of work awarded to the sub-contractor.
2. Department however took the view that appellant should discharge the service tax liability which was not done by them, hence the SCN dated 08.10.2010 and resultant impugned order dated 23.01.2012. Hence this appeal.
3. The issue stands covered by the following cases:
i. Visesh Engineering Co. Vs Commr of Cus. Ex. & ST, Guntur [2016 (43) STR 232 (Tri-Hyd)] ii. Nana Lal Suthar Vs CCE, Jaipur-I [2015-TIOL-2357-CESTAT-DEL] iii. Oikos Vs CCE, Bangalore-III [2007 (5) STR 229 (Tri-Bang)] iv. CCE, Raipur Vs Jethson Builders Pvt Ltd., [2011-TIOL-1613-CESTAT-DEL] v. Final Order dated 07.10.2013 passed by CESTAT, Ahmedabad in Appeal No. ST/11897/2013 in the case of M/s Mahalaxmi Infracontract Limited.
vi. Urvi Construction Vs Commr. Of Service Tax, Ahmedabad [2010 (17) STR 302 (Tri-Ahmd)] vii. CCE, Pune-III Vs Akruti Projects [2014-TIOL-1925-CESTAT-Mum] viii. DNS Contractor Vs CCE, Delhi-I [2015 (37) STR 848 (Tri-Del)] ix. Jac Air Services Pvt Ltd., Vs Commr. Of Service Tax, Delhi [2013 (31) STR 155 (Tri-Del)] Following the principle laid in the above decisions, we hold that the impugned order is not sustainable, and requires to be set aside, which we hereby do.
4. In the result, the appeal is allowed with consequential reliefs, if any.
(Operative part of this order was pronounced in court
on conclusion of the hearing)
(MADHU MOHAN DAMODHAR) (SULEKHA BEEVI C.S.)
MEMBER(TECHNICAL) MEMBER(JUDICIAL)
Jaya.
5