Custom, Excise & Service Tax Tribunal
M/S. Hi-Cons Building Products vs The Commissioner Of Central Excise, ... on 17 January, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Stay & Appeal No: ST/Stay/497/2010 in ST/870/2010 (Arising out of Order-in-Original No: 8/2010/ST dated 29.01.2010 passed by the Commissioner of Central Excise, Customs & Service Tax, Cochin.) 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? No 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes M/s. Hi-Cons Building Products Appellant Vs. The Commissioner of Central Excise, Customs & Service Tax Cochin. Respondent
Appearance Shri Anil Kumar. B, Advocate for the appellant.
Shri D. P. Nagendra Kumar, JCDR for the revenue.
CORAM SHRI M. V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) SHRI P. KARTHIKEYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 17.01.2011 Date of decision: 17.01.2011 STAY ORDER No._______________________2011 FINAL ORDER No._______________________2011 Per Shri M. V. Ravindran (Oral) This stay petition is filed for waiver of the pre-deposit of the following amounts.
(i) Service Tax of Rs.68,25,839/-; Education Cess of Rs.1,36,517/- & Secondary and Higher Education Cess of Rs.4,768/- with applicable interest;
(ii) Penalty of Rs.200/- per day till the date of actual payment of Service Tax under Section 76;
(iii) Penalty of Rs.1,000/- under Section 77; and
(iv) Equal penalty under Section 78.
2. After hearing both sides for some time on stay petition, we find that the issue being in a narrow compass, appeal itself could be disposed of at this juncture. Hence, after hearing the stay petition for pre-deposit of the amounts involved, we take up the appeal for disposal.
3. The learned counsel brings to our notice the show cause notice issued to them. He would submit that the show cause notice as well as Order-in-Original has not classified the services under which the revenue wants to tax them. He would specifically bring to our notice paragraph 31, 35 and 38 of the Order-in-Original wherein the Adjudicating Authority has come to a conclusion that the appellants had provided two different services, while in the order portion, the Adjudicating Authority has confirmed the entire demand without classifying under which services such demand has been confirmed. He would submit that they were taking a plea before the Adjudicating Authority that they are covered under the category of works contract service.
4. The learned JCDR reiterates the findings of the Adjudicating Authority.
5. On a careful consideration of the submissions made by both sides and perusal of the records, we find that the show cause notice proceeds on a particular allegation indicating that the assessees services would fall under a particular service i.e., under Commercial or Industrial Construction Services whereas in the Order-in-Original, as rightly pointed out by the learned counsel, in paragraph 31, 35 and 38 the Adjudicating Authority has come to a different conclusion that the appellant is providing Erection, Commissioning and Installation Services and also Commercial or Industrial Construction Services. On the confirmation of the demand, we find that the entire amount has been confirmed without indicating the breakup of the amount attributable to the services rendered by the assessee. Since the adjudication order is silent on the exact services rendered by the assessee, we consider it fit to set aside the impugned order, keeping all the issues open, remand the matter back to the Adjudicating Authority to reconsider the issue afresh within the allegations raised in the show cause notice, after following the Principles of Natural Justice. Stay petition disposed of. Appeal allowed by way of remand.
(Pronounced and dictated in open Court) (P. KARTHIKEYAN) Member (T) (M. V. RAVINDRAN) Member (J) //rv// 4