Custom, Excise & Service Tax Tribunal
Eci Engineering And Construction ... vs Commissioner Of Customs, Central ... on 16 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20978 / 2014 Application(s) Involved: ST/Stay/20612/2014 in ST/20626/2014-DB Appeal(s) Involved: ST/20626/2014-DB [Arising out Order-in-Original No. 99/2013 dated 22/11/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad-IV ] ECI Engineering And Construction Company Ltd. A-12, 13, Panchvati Township, Manikonda, Hyderabad - 500 034 Andhra Pradesh Appellant(s) Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV Posnett Bhawan, Tilak Road, Ramkoti, Hyderabad - 500 001 Andhra Pradesh Respondent(s)
Appearance:
Mr. Y. Sreenivasa Reddy, Advocate M/s. Questcom Consultancy Services, H. No. 8-2-598/A/7, 1st Floor, Road No.10 Banjara Hills, Hyderabad - 500 034 Andhra Pradesh For the Appellant Mr. N. Jagdish, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 16/06/2014 Date of Decision: 16/06/2014 Order Per: B.S.V. MURTHY After hearing both the sides and considering the submissions and going through the records, we find that the following submissions were made by the learned counsel:
a) The learned respondent was pleased to pass the impugned order-in-original No. 99/2013-Adjn (Commr) ST dt. 22.11.2013 demanding service tax as follows under the proviso to Section 73(2) of the Act along with interest under Section 75 of the Act.
S. No. ST Demanded Period Category 1 Rs. 4,40,72,620/- October, 2007 to March 2011 Erection, Commissioning or Installation Service 2 Rs. 26,29,85,657/- October, 2007 to March 2011 Works Contract Services 3 Rs. 64,22,980/- 2011-12 Commercial or Industrial Service 4 Rs. 2,22,572/- 2008-09 to 2010-11 Supply of Tangible goods service
b) The learned respondent imposed a penalty of 2% per month on the amounts of services at (1) & (4) above for the period from 01.10.2007 to 09.05.2008 under Section 76 of the Act and a penalty of Rs. 10,000/- under Section 77 of the Act and a penalty of Rs. 31,37,03,829/- under Section 78 of the Act.
c) The impugned order has been passed without considering any of the submissions made by the appellants in their written submissions and during the personal hearing. For confirming the demand of service, no finding whatsoever has been given by the adjudicating authority, particularly with regard to classifying the works under Works Contract Service. No contract has been mentioned in the show-cause notice or the impugned order, but the demand has been confirmed based on the Income Tax Returns, which has no nexus with Works Contract Service or Erection, Commissioning or Installation Service.
d) All the services provided by the appellant in this case are related to transmission of electricity and construction of roads both of which were exempted from service tax.
e) The adjudicating authority committed a gross error in confirming the demand invoking the extended period as this is the second show-cause notice based on the same set of documents i.e. Balance Sheets. It is settled law when relevant facts were in full knowledge of the department when the first show-cause notice has been issued, extended period cannot be invoked while issuing second show-cause notice. The adjudicating authority failed to follow the ratio laid down by the Honble Supreme Court in the case of Nizam Sugar Factory Vs. CCE [2006 (197) E.L.T. 465 (S.C.)].
2. After considering the submissions we consider it appropriate that at this stage itself the impugned order should be set aside and matter remanded to the original adjudicating authority for fresh consideration of all the issues and to pass a well reasoned detailed order considering each works contract, the work undertaken therein, applicability of the exemption claimed and classification and the liability etc. Needless to say appellant shall be given reasonable opportunity to present their case. We make it clear that we have not expressed any opinion on any of the issues.
(Operative portion of the order has been pronounced in open court on 16.06.2014) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER iss