Custom, Excise & Service Tax Tribunal
Vadera Interiors &Amp; Exteriors vs Ghaziabad on 7 November, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Service Tax Appeal No.70337 of 2016
(Arising out of Order-in-Original No.03/COMMR./ST/GZB/2015-16 dated
21/10/015 passed by Commissioner, Central Excise & Service Tax,
Ghaziabad)
M/s. Vadera Interiors & Exteriors .....Appellant
(214, New Gandhi Nagar, Ghaziabad -U.P.)
VERSUS
Commissioner of Central Excise,
Ghaziabad .....Respondent
(Ghaziabad) APPEARANCE:
Shri Rajesh Chibber, Advocate for Appellant Shri Santosh Kumar Agarwal, Authorized Representative for Respondent CORAM :
Hon'ble Mrs. ARCHANA WADHWA, MEMBER (JUDICIAL) Hon'ble Mr. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) FINAL ORDER NO.71896/2019 DATE OF HEARING : 05 September, 2019 DATE OF PRONOUNCEMENT : 07 November, 2019 ARCHANA WADHWA After hearing both the sides duly represented by Shri Rajesh Chibber, learned advocate appearing on behalf of the appellant and Shri Santosh Kumar Agarwal, learned A.R. appearing on behalf of the revenue, we find that the appellant was registered with the department under the category of Commercial or Industrial Construction and Works Contract Services and was discharging its service tax liability accordingly.
2. The appellant provided services for Construction of 3.2 MLD Sewerage Treatment Plant at Bhiwadi as sub- contractor to M/s. Enviro Engineers for which they were 2 Service Tax Appeal No.70337 of 2016 awarded order by their letter dated 22.02.2009 and Construction of class rooms in school building for Mewat Development Authority. Haryana as sub-contractor to M/s. NBCC, Nodel Agency for Ministry of Minority Affairs and they also took short term loan.
During the course of audit of the records for the period 2009-2010, audit took a view that said activities were liable to tax under works contract services. Correspondence was exchanged between the appellant and department in December, 2010 when query was raised by the department which was immediately replied.
Nothing happened thereafter for almost 4 years when the department vide summon dated 08.05.2014 department called for certain information and later on SCN dated 29.09.2014 was issued invoking extended period demanding service tax on above services under works contract.
3. The demand was contested on merits as also on time bar.
4. The Commissioner bifurcated the period of demand in two parts i.e. prior and post 01.07.2012 i.e. after introduction of negative list vide notification no.25/2012 dated 20.06.2012.
He dropped the demand of service tax in respect of construction of school building for the period prior and after 01.07.2012 by treating the same to be non-commercial activity.
He also dropped the demand of service tax on short terms loan.
3 Service Tax Appeal No.70337 of 2016 The Commissioner classified services in respect of sewerage treatment plant under erection commissioning and installation. It is on such basis, he has held that since for the period prior to 01.07.2012 only works contract services for non-commercial/industrial construction were eligible for exemption and after that date services for sewerage treatment plant to Govt. bodies were exempt, he confirmed the demand for the period from 2009-10 to 30.06.2012.
He also upheld invocation of extended period.
5. Learned advocate appearing for the appellant has strongly assailed the demand on the ground that the same stands confirmed under erection commissioning and installation whereas the proposal in the show cause notice was for confirmation of demand under works contract services. He submits that Adjudicating Authority cannot go beyond the show cause notice and places reliance on the Tribunal decision in the case of Sonu Construction Vs. C.C.E & ST Final Order No.71756-71757/2018-CU/DB dated 31.07.2018. He also assails the demand on the issue of time bar by submitting that the entire dispute arose on the basis of audit objection conducted in the year 2010 and all the queries raised by the Revenue were duly answered by the appellant. As such issuance of the show cause notice after the normal period of limitation is not justified. For the above proposition, he places reliance on the Hon'ble High Court of Allahabad decision in the case of C.C.E & ST Vs. Triveni Engineering & Industries Limited, 2015 (317) ELT 408(Alld).
6. After hearing the learned A.R. and going through the impugned order we find that the demand stands confirmed under a category different than the one proposed in the 4 Service Tax Appeal No.70337 of 2016 show cause notice. In the absence of any proposal in the notice to confirm the demand under the category of erection commissioning and installation services, it was not open to the Revenue to go beyond the show cause notice. This was so held by the Tribunal in the case of Gambhir Construction Company Final Order No.70559/2017 dated 05.06.2017, which stands followed in the case of M/s. Sonu Construction referred supra. As such we find no reasons to uphold the impugned demand.
7. Apart from above, the demand stands raised by invoking the longer period of limitation. As per facts on record, after the audit objection, a lot of correspondence was exchanged between the Appellant and the Revenue in the month of December, 2010. In such a scenario raising of demand in September, 2014 by invoking the longer period of limitation, cannot be held to be proper and justifiable. Accordingly we hold the demand to be barred by limitation also.
8. In view of the foregoing impugned order is set aside and appeal is allowed on merits as also on limitation.
(Order Pronounced in the open Court on 07/11/2019) Sd/-
(Archana Wadhwa) Member (Judicial) Sd/-
(Anil G. Shakkarwar) Member (Technical) akarshak