Custom, Excise & Service Tax Tribunal
M/S Newton Engineering And Chemicals ... vs C.C.E. & S.T., Vadodara-Ii on 14 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.ST/140/2008-DB [Arising out of OIO-01/COMMR/STAX/VDR-II/2008-09dated 19.05.2008 passed by the C.C.E. Vadodara-ii] M/s Newton Engineering And Chemicals Ltd. Appellant Vs C.C.E. & S.T., Vadodara-ii Respondent
Represented by:
For Appellant: Mr. Willingdon Christian (Advocate) For Respondent: Mr. S.N. Gohil (A.R.) CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE Mr. Raju, MEMBER (TECHNICAL) Date of Hearing/Decision:14.02.2018 Final Order No. A / 10325 /2018 Per: Dr. D.M. Misra Heard both the sides.
2. This is an appeal filed against order-in-original No. 01/COMMR/STAX/VDR-II/2008-09 passed by the Commissioner of Central Excise Vadodara-II Commissionerate. Briefly stated the facts of the case are that the appellant had rendered Erectioning and Commissioning service during the relevant period from 1999 to 2004 to M/s BPCL & IOCL. Alleging that the service rendered by the appellant was taxable, Show Cause Notice was issued to them demanding service tax with interest for the said period. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, they filed appeal before this Tribunal and it was remanded by the Tribunal to re-consider the issue afresh. In the de novo proceedings, the Ld. Commissioner after analyzing the evidences on record and taking of the consideration various aspects of the case, reduced the demand to Rs. 17,56,578/- with interest and equivalent amount of penalty. Hence, the present appeal.
3. Ld. Advocate Sh. Willington Christian for the Appellant, submits that during the relevant period they have supplied the material along with the service of erectioning and commissioning to M/s IOCL and BPCL. The Ld. Commissioner did not take into consideration their plea that the services rendered by them, which includes also supply of material along with services, hence a works contract service and the levy on which came into existence w.e.f. 01.06.2007, decided the matter against them. He submits that recently, the Honble Supreme Court in the case of CCE vs Larsen & Toubro Ltd. 2015 (8) TMI 749 (SC) held that service tax on works contract service prior to 01.06.2007 cannot be subjected to the levy of service tax.
4. Ld. AR for the Revenue, reiterated the findings of the Ld. Commissioner (Appeals).
5. We find that even before the Authorities below the appellant from the very beginning raised the issue that the services rendered by them are Works Contract Service, in respect of certain agreements/contracts. However, the plea was not considered and the demand has been confirmed against the appellant. We find that recently the Honble Supreme Court in Larsen & Toubro Ltd.s case (supra) observed that the service tax levy cannot be directed on Works Contract Service for the period prior to 01.06.2007. This issue has not been analysed and examined by the authorities below that whether the appellant in fact rendered Works Contract Service against the contracts. Hence, the aspect, needs to be scrutinized and verified in the light of the principle of law laid down by the Honble Supreme Court in Larsen & Toubro Ltd.s case. In these circumstances, it is prudent to remand the matter to the adjudicating authority to analyze the evidence including the contracts which are claimed to be Works Contract Service by the appellant. Appeal is allowed by way of remand.
(Dictated and pronounced in the open court)
(Mr. Raju) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
Neha
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ST/140/2008-DB