Custom, Excise & Service Tax Tribunal
M/S M.S. Engineers India Pvt. Ltd vs Cce & St, Noida on 7 January, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi. Date of hearing/decision: 07.01.2014 For Approval and Signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Service Tax Appeal No. 57091 of 2013 with Service Tax Stay No. 57666 of 2013 (Arising out of the Order in Original No. 46/Commissioner/Noida/2012-13 dated 30.11.2012 passed by the Commissioner of Customs and Central Excise and Service Tax, Noida). M/s M.S. Engineers India Pvt. Ltd. Appellant Vs. CCE & ST, Noida Respondent
Appearance:
Shri B. L. Narasimhan, Advocate for the appellant Ms. Ranjana Jha, Jt. CDR for the Revenue Coram:
Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Member (Technical) Final Order No. 50064/ 2014 Per: Archana Wadhwa:
Out of total confirmed service tax demand of Rs.2,38,77,104/-, the appellant has already deposited an amount of Rs.91,20,091/-. By treating the same as sufficient for the purpose of Section 35F of the Central Excise Act, we dispense with the condition of pre-deposit of balance amount of service tax and entire amount of interest and penalty imposed upon them. Further, as we find that the impugned order of the Commissioner relates to the various basic issues, which do not stand considered by him in a proper manner, we proceed to decide the appeal itself.
2. As per facts on record the appellant is engaged in providing construction services at Nodia as also at various other places located in Maharashtra. They entered into a contract with M/s Jaypee Greens for providing their services for construction of residential complex. They got themselves registered with the Service Tax Department for providing the said services. The demand in the present case relates to service tax in respect of the construction services provided by the appellant at Noida as also at other places at Mumbai, Pune, Gurgaon, New Delhi etc. As such, we note that the demand in the present appeal relates to the construction activities carried out by the appellant at 12 13 different places.
3. It is seen that the appellant before the Commissioner strongly raised objection about his jurisdiction to decide the service tax in respect of the other construction services provided at different places i.e. at Pune, Mumbai, New Delhi etc. and submitted that inasmuch as the place of service provider does not fall under the jurisdiction of Commissioner, Noida, the confirmation of demand for service tax in respect of such services would not be in accordance with law. However, the Commissioner dealt with the said plea of the appellant and arrived at a finding that the registration granted at Noida has to be considered as Centralised registration and the appellant has to be held as having provided services from the said registered office. Accordingly, he rejected the appellants plea about the jurisdiction.
4. Further, in his impugned order he has denied the benefit of Notification No. 12/2003-ST and 1/2006-ST, which permits abatement to the extent of 67%, subject to the fulfilment of conditions enumerated therein. The said abatement stands denied on the ground that apart from using his own material in construction of the residential premises, the appellant has also been supplied free material by their customers. As such, the benefit of abatement cannot be extended to them.
5. Further, it is the appellant grievances that though in their defence reply, they have raised number of pleas but the Commissioner has merely reproduced the allegation made in the show cause notice and has observed that he agrees with the same. He has not dealt with the various submissions made by the party, in their defence reply.
6. Learned DR appearing for the Revenue submits that today matter is listed only for disposal of the stay petition and has her strong objection to the disposal of the appeal. In any case, she submits that admittedly the appellant was registered in their Noida address and were providing all the services from the said premises. As such Commissioner has rightly excised his jurisdiction to decide the service tax liability arising in respect of construction activities done from other places. As regards free supply material, she submits that the subject condition of the Notification admittedly does not stand satisfied by the appellant and the abatement claimed has been rightly rejected. She submits that it stands recorded in the impugned order that the appellant recovered the service tax amount from their client but did not deposit the same. The quantum of receipt of service tax as reflected in their balance sheet is different from the quantum received by them.
7. After appreciating the submissions made by both the sides, we reject the prayer made by the ld. DR for disposal of the appeal. As we have already observed that the matter needs to go back to the adjudicating authority for fresh decision in the light of the various factors, we do not deem it fit to keep the appeal pending in the Tribunal for longer period, instead of deciding the same at this stage itself.
8. As regards the merits of the case, we find that appellant have strongly contended on the issue of jurisdiction by drawing our attention to the form ST-I i.e. the registration granted by the Revenue itself. The address of the premises stands given as Jaypee Greens, G-Block, Surajpur- Kasna Road, Gautam Budh Nagar, Greater Noida. It is their contention that since this was the only project being undertaken by them in Greater Noida, registration was obtained only for the construction activity to be done by them at Greater Noida. In fact, the address given by them is to the address of the service recipient i.e. the place at which the construction was going on. As such by no stretch of imagination, it can be said that the appellant got themselves registered at Greater Noida for providing construction services at other places also i.e. either at Delhi or in Maharashtra. From the said ST-I, we also note that the column nature of the registration, was shown as registration of a single premises. It has also come in record that the Revenue during the course of investigation, visited the said premises, where the appellant were not found there, thus lending some credibility to the appellants stand that they were not operating from the said premises. Further, it is seen that the summons were being issued to Mr. Rajeev Ahuja, Director of the appellant unit, to their registered Mumbai Office. Even the show cause notice is addressed to their Mumbai Office. This reflects that the appellant was having registered office in Mumbai and as per the appellant all the services were being offered from Mumbai. We also note that as per the service tax Order No. 1194 dated 29.06.1994 issued by the Board, the jurisdiction of various officers to decide the service tax dispute stands detailed. In terms of the said order, Commissioner of Central Excise will have the jurisdiction as defined in sub-rule (ii) of Rule 2 of Central Excise Rule, 1994 in terms of the Notification No. 14/2002-CE (NT) dated 8.3.2002, as amended, Commissioner of Central Excise, Noida will have jurisdiction to decide the cases in the Districts specified therein and admittedly the State of Maharashtra or Delhi is not one of the specified territories. We also find force in the appellants reliance on the decision of the Tribunal in Vihar Ahar Pvt. Ltd. vs. CST, Ahmedabad 2013-TIOL-534-CESTAT-AHM and Ores India Pvt. Ltd. vs. CCE, Cus. & ST, Bhubaneshwar-II- 2008 (9) STR 157 (Tri. Kolkata). Inasmuch as the Commissioner has not examined the angle of jurisdiction from the above point of view, we deem it fit to set aside the impugned order and remand the matter to Commissioner for fresh look into the angle of jurisdiction. It is suggested that if the Commissioner is of the view that the matter falls outside his jurisdiction, he is at liberty to approach the Board for the appropriate action required for appointing a single adjudicating authority for multiple registrations.
9. Inasmuch as the matter is being remanded for reconsidering the point of jurisdiction, the Commissioner would also look into the appellants grievances of non consideration of his defence pleas as also of non availament of abatement in terms of Notification in the light of the Larger Bench decision of the Tribunal in the case of Bhayana Builders (P) Ltd. vs. CST, Delhi 2013 (32) STR 49 (Tri. LB). We make it clear that we have not expressed any opinions either on the point of jurisdiction or on the merits of the case and the Commissioner is expected to decide the same afresh in the light of the various Notifications, service tax orders, and the decision of the Tribunal as discussed supra. Stay petition as also appeal get disposed of in above manner.
(Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) Pant