Custom, Excise & Service Tax Tribunal
M/S Lancy Constructions vs Commissioner Of Central Excise And ... on 25 February, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20280 / 2014 Application(s) Involved: ST/Stay/25695/2013 in ST/25522/2013-DB Appeal(s) Involved: ST/25522/2013-DB [Arising out of Order-in-Appeal No. 643/2012 dated 20/11/2012 passed by Commissioner of Central Excise (Appeals), MANGALORE] M/s Lancy Constructions Third Floor, Pio Mall, Near Capuchin Friary, Bejai Church Road, Bejai, MANGALORE-575004 Appellant(s) Versus Commissioner of Central Excise and Service Tax - MANGALORE 7TH FLOOR, TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE-575003 Respondent(s)
Appearance:
Mr. Rajesh Kumar, C.A. HIREGANGE & ASSOCIATES CHARTERED ACCOUNTANTS #1010, 1ST FLOOR, ABOVE CORPORATION BANK, 26TH MAIN, 4TH T BLOCK, JAYANAGAR, BANGALORE-560 041 For the Appellant Mr. A.K. Nigam, A.R. For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER ________________________________________ Date of Hearing: 25/02/2014 Date of Decision: 25/02/2014 Per B.S.V. MURTHY After hearing both sides for some time and taking the view that the appellant has deposited the entire amount of service tax with interest and only amount relating to Cenvat credit has not been paid, we consider the submission of learned C.A. that their important submissions have not been considered by the adjudicating authority and therefore, the matter should be remanded at this stage for which learned A.R. has no objection.
2. An amount of Rs. 28,82,185/- has been demanded on Works Contract Service for the period from April 2009 to December 2009; an amount of Rs. 1,25,836/- has been denied on the ground that the appellant was providing exempted as well as dutiable service and should not have been taken credit; service tax of Rs. 79,201/- has been demanded on the ground that the appellant has received Goods Transport Service and another amount of Rs. 38,698/- has been demanded on the ground that appellant has provided Cargo Handling Service. The entire demand is within the normal period of limitation except the demand of service tax on works contract service for the period October 2009 to March 2010.
3. As regards works contract service, learned C.A. submits that the appellant had some financial difficulties and consequently, there was delay in payment but the amount was reflected in their Return and therefore, suppression could not have been invoked and once the tax has been paid with interest, no further action should have been taken. He submits that this stand has been ignored and it has been held that only on detection by audit party, the appellant has paid duty. The learned C.A. submits that the audit of the appellants record was done in February 2010 and the Return for the period ending 30.9.2009 was filed in October 2009 itself.
4. We find that the submission of learned C.A. that the matter should have been treated closed once the appellant paid the service tax with interest is correct in the facts and circumstances. In such a case, it would be infer to take a view that the appellant is liable to penalty under Section 78 of the Act. Therefore, the imposition of penalty, prima facie, does not appear to be sustainable.
5. As regards Cenvat credit, he submits that the appellant has taken Cenvat credit only in respect of service attributable to taxable service and no verification has been done by the department even though relevant documents were submitted and submissions were made.
6. As regards Goods Transport Service, it has been submitted that the appellant had rented vehicles belonging to Truck Operators and therefore, service received was not Goods Transport Service at all. If it was not Goods Transport Service, the appellant would not liable to pay service tax. This aspect also has not been considered and dealt with.
7. Further, service tax has been demanded on Cargo Handling Service on the ground that the appellant was providing loading and unloading service and on such service, transportation is involved and loading and unloading is part of the transportation which cannot be considered separately. This submission has also not been considered by lower authorities.
8. In view of above submission that various submissions made by the appellant have not been considered, we consider that the original adjudicating authority should consider the matter afresh and ensure that all the submissions made by the appellant are considered and dealt with in accordance with law and conclusions arrived at. Accordingly, we remand the matter to the original adjudicating authority for fresh consideration with a request to deal with all the issues after giving reasonable opportunity to the appellant to present their case and thereafter, pass a well reasoned order.
(Dictated and pronounced in open court) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER /vc/