Custom, Excise & Service Tax Tribunal
M/S Vistar Constructions Pvt. Ltd vs Cst, New Delhi on 1 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV DATE OF HEARING : 01/04/2016. DATE OF DECISION : 01/04/2016. Service Tax Appeal No. 53190 of 2014 [Arising out of the Order-in-Original No. 22/VKG/2009 dated 19/03/2009 passed by The Commissioner, Service Tax Commissionerate, New Delhi.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair :Seen copy of the order? 4. Whether order is to be circulated to the : Yes Department Authorities? M/s Vistar Constructions Pvt. Ltd. Appellant Versus CST, New Delhi Respondent
Appearance Shri B.L. Narsimhan, Advocate for the appellant.
Shri Sanjay Jain, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51149/2016 Dated : 01/04/2016 Per. Archana Wadhwa :-
The appellant is engaged in providing renovation services which stand classified by the Revenue under the category of completion or finishing services falling under commercial or industrial construction services. The dispute in the present appeal relates to the abatement being claimed by the appellant in terms of the provisions of Notification No. 15/2004-ST dated 10/09/2004 and No. 1/2006-ST dated 01/03/2006. In as much as the appellants were discharging their service tax liability only in respect of 33% of the value after availing the benefit of abatement to the extent of 67%, the present proceedings against them resulting in confirmation of demand to the tune of Rs. 3.86 crores approximately alongwith confirmation of interest and imposition of penalties.
2. Learned Advocate appearing for the appellant submits that the service was admittedly being provided under works contract entered by them with their clients. This fact becomes clear from reading of para 6 of the impugned order apart from other portions of the order. It is the contention of the learned Advocate that there was no liability on their part to discharge any service tax in respect of works contract prior to 01/6/2007, in terms of the Honble Supreme Court decision in the case of CCE & CUS., Kerala vs. Larsen & Toubro Ltd. reported in 2015 (39) S.T.R. 913 (S.C.). As such, the question of confirmation of differential demand becomes irrelevant.
3. Learned DR appearing for the Revenue submits that the proceedings were initiated against the assessee relatable to the claim of abatement and as such it is not open to the appellant to claim no tax liability in terms of the judgment of the Honble Supreme Court.
4. We find no favour with the above contention of the learned DR. A reading of the impugned order clearly shows services were being provided by the appellant in terms of the works contract orders. No doubt, the dispute relates to the valuation f the said services but the declaration of law by the Honble Supreme Court in the case of CCE & CUS., Kerala vs. Larsen & Toubro Ltd. referred (supra) would equally apply to the facts of the present case laying down with works contract was not taxable prior to 01/06/2007. It is well settled law that the law declared by the highest court of the country has to be interpreted in such a manner as if the same was the law, even prior to declaration of the same by Honble Supreme Court. As such we find favour with the appellants stand that whatever duty stands paid by them was also wrongly paid as there was no tax liability on their part in view of the recent decision of the Honble Supreme Court. However, learned Advocate fairly agrees that whatever has been paid stands paid and they are not disputing the payment of the same.
5. In view of the above, we find that the impugned order confirming the differential duty and imposing penalties is unsustainable. The same is accordingly set aside and appeal allowed with consequential relief.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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