Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Mall Enterprises on 16 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I Application no. ST/CO/14/12-Mum APPEAL No.ST/694/11-Mum (Arising out of Order-in-Appeal No. AGS(159)32/2011 dated 15.09.2011 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, 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 should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
Commissioner of Central Excise, Aurangabad Appellant Vs. Mall Enterprises Respondent Appearance: Shri A.K.Goswami, Additional Commissioner, for Appellant Shri R.S.Indani Advocate, for Respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing : 16/09/2015 Date of Decision : 16/09/2015 ORDER NO Per: M.V. Ravindran
This appeal is filed by the Revenue against Order-in-Appeal No. AGS(159)32/2011 dated 15.09.2011.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the taxability of the services rendered by the respondent assessee. Respondent assessee had constructed residential quarters for staff of New Parli Thermal Power Station and it is the case of the Revenue that such construction of staff quarters could be categorized under Residential Complex Services. A show cause notice was issued alleging nonpayment of service tax, and demanding interest thereof and also proposing to impose penalties.
4. Appellant contested the show cause notice on limitation as well as on merits. The adjudicating authority after following due process of law, dropped the proceedings initiated by the show cause notice; aggrieved by such adjudication order, Revenue preferred one appeal before the first appellate authority. The first appellate authority rejected the appeal filed by the revenue. In the appeal filed by the Revenue we find from the grounds, as taken by the Revenue is basically revolving upon the definition of Residential Complex Services and CBEC circular no. 96/7/2007-ST.
5. We find that the first appellate authority while rejecting the appeal filed by the revenue has recorded the following findings.
8. I have carefully gone through the appeal file, documents available on records and submission made during the course of personal hearing. From the records, I find that the appeal has been filed by the appellant against OIO no. 12/ST/ADC/2011 dated 31/03/2011 passed by the Additional Commissioner, Central Excise and Customs, Aurangabad. The issue to be decided by me is whether the grounds of appeal submitted in the appeal are sustainable in law. The only ground raised by the appellant for challenging the OIO is based on the definition of Residential Complex given in Section 65(91a) of Finance Act, 1994. It is contended that the activity undertaken by the respondent does not fall within the ambit of exclusion clause given in the definition. Therefore, before deciding the appeal the exclusion clause given in the definition needs to be examined. The exclusion clause reads as under:
but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Thus, it is clear that not only the residential complex designed or laid out by another person are excluded from the definition but also the ones which are intended for personal use of such person i.e. the owner of the complex. Further, the personal use has been clarified as put to use on rent or without any consideration. In the instant case the New Thermal Power Station, Parli is the such person and the respondent is another person. I find that the staff quarters constructed by the respondent are not covered under the definition of Construction of complex under Section 65(30a) ibid and therefore the activity does not attract Service tax. Therefore, I find that the adjudicating authority has rightly dropped the Show Cause Notice. The impugned OIO needs no interference. The appeal merits rejection.
6. As against such factual findings, Revenue has not contested the same in other grounds of appeal strongly. It is also undisputed that the residential buildings constructed by the appellants are allotted by New Parli Thermal Power Station Ltd. as quarters for residential purposes to their employees. We find that the concurrent findings of both the lower authorities are correct and in consonance of law.
7. In view of the forgoing, we reject the appeal filed by the Revenue. Cross objection filed by the assessee is also disposed of.
(Operative portion of the order pronounced in court on completion of the hearing of case).
(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) akp 1 4 APPEAL No.ST/694/11-Mum