Customs, Excise and Gold Tribunal - Bangalore
Spandrel vs The Commissioner Of Central Excise on 26 April, 2007
Equivalent citations: [2007]11STJ130(CESTAT-BANGALORE), [2008]12STT286
ORDER S.L. Peeran, Member (J)
1. The appellant is required to pre-deposit duty amount of Rs. 1,09,39,242/-. appellants have been brought within the category of Interior Decorators for the purpose of levy of Service Tax. Larger period has also been invoked for confirmation of these demands which includes Education Cess. The appellant's contention is that the activity carried out by them is civil work and that civil work will come within the category of "Commercial or Industrial Construction Services". The definition refers to the activity of completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering, wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structures. Revenue has considered their activity is having a particular bearing and coming within the category of Interior Decorators and no civil work is carried out by them. The appellant's contention is that even as per the investigations carried out and statements recorded from the proprietor, they were carrying on the work of pest control, demolition and dismantling, masonry work, wall preparations, viz., cement plaster, POP punning, flooring & cladding viz., Iranian/Italian marble flooring, ceramic tile flooring, vitrified ceramic tile flooring, kotah flooring, skirting & trims, counters, false ceiling, partitions, etc. It is submitted that these activities as per the statement of the proprietor would come only under the category of 'Commercial or Industrial Construction Services' which was brought into effect from 16.6.2005, therefore, there was no category available for bringing these services for the period 1.10.2000 to 30.9.2005. The finding recording by the authorities that the work carried out by them would come within the definition of 'Interior Decorators' more particularly in the explanation "in any other manner" is not correct.
2. The learned Counsel submits that in terms of the definition of 'Interior Decorators' means any person engaged, whether directly or indirectly, in the business of providing by way of advice, consultancy, technical assistance or in any other manner, services related to planning, design or beautification of spaces, whether man-made or otherwise and includes a landscape designer. It is submitted that they were not carrying on any of these activities but were engaged in civil work as per the statement given by the proprietor. Hence, the levy of Service Tax is seriously disputed. The learned Counsel submitted that the appellant is a proprietary concern and he is faced with severe financial hardship and at this stage they would be able to pre-deposit Rs. 10 lakhs if time is granted to them.
3. The learned JDR submitted that the Commissioner has perused the issue in detail and considered their prayers. He has noted that the type of work carried out by them in terms "any other manner" would be brought within the ambit 'Interior Decorators'. He prays for putting the appellants on better terms, then the offer made by the appellants.
4. We have perused the records and we find from Para 7 of the impugned order the details of statements recorded from proprietor that these activity carried out by him behalf of the firm clearly discloses the activity of civil work. The definition of 'Interior Decorators' is in the form of advice, consultancy, technical assistance or any other manner services related to planning, design or beautification of spaces and includes a landscape designer. The Commissioner has held that the activity would come under the term "in any other manner". We are required to interpret the term "in any other manner". The said term has been read along with the prevailing term in the definition i.e. any person engaged in the business of providing by way of advice, consultancy, technical assistance, which is read with these terms, then the civil work carried out by them cannot be brought within the category of 'Interior Decorators'. Prima facie looking into the totality of circumstances and the statements given by the proprietor in which the activities carried out by him are more akin to civil work in terms of the definition of the term "Commercial or Industrial Construction Services", the appellants have a strong case on merits, however, offer given to pre-deposit Rs. 10,00,000/-(Rupees Ten Lakhs Only) is accepted. The same should be deposited within 3 month. On such deposits, the balance of duty and penalty stands waived and recovery stayed. Either side may move for early hearing after compliance of the stay order. Matter to report compliance on 1st August 2007.
(Pronounced and dictated in open Court)