Custom, Excise & Service Tax Tribunal
K Ramachandra Rao Transmission & ... vs Commissioner Of Central Excise, ... on 23 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 21016 / 2014 Application(s) Involved: ST/Stay/26001/2013 in ST/25750/2013-DB Appeal(s) Involved: ST/25750/2013-DB [Arising out of 31-2012 dated 11/12/2012 passed by Commissioner of Central Excise and Service Tax , HYDERABAD-I ] K Ramachandra Rao Transmission & Projects Pvt Ltd Praveen Chambers, 305 B Block, Kushal Towers, Khairatabad, HYDERABAD - 500004 AP Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax HYDERABAD-I NULL KENDRIYA SHULK BHAVAN, L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)
Appearance:
M.NARAYANA SWAMY NAIDU ADV 7-1-414/37, SRINIVAS COLONY (EAST), S.R. NAGAR, HYDERABAD-AP-500 038. For the Appellant Shri Ganesh Haavanur, Addl. Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 23/06/2014 Date of Decision: 23/06/2014 Order Per : B.S.V.MURTHY Service tax of Rs.1,52,42,590/- has been demanded on the ground that the appellants have provided services such as foundation, earthing works in respect of towers, renting of immovable property service, compound walls in SEZ. In addition, CENVAT credit has been denied on the ground that in certain cases, credit was taken prior to payment of service tax to the service provider, in certain cases credit was taken when the invoice or bill was not in the name of the appellant and in some cases credit was taken without documents.
2. The learned counsel on behalf of the appellant submits that the entire work undertaken by them in respect of which service tax has been demanded relates to transmission and distribution of electricity. He submits that the appellants also contributed to the passing of impugned order by not citing the relevant notification granting retrospective exemption to all the services relating to transmission and distribution of electricity prior to 2009 by Notification No.45/2010. Learned AR would submit that in respect of compound wall for SEZ, service tax has been demanded on the ground that service was utilised within SEZ and in such cases exemption available in the form of refund and not by way of non-payment of tax. Learned counsel submits that compound wall was constructed in respect of a sub-station and therefore that all gets exempted under Notification No.45/2010. As regards CENVAT credit, if the claim relating to exemption for the service activity is accepted, the demands relating to CENVAT credit also would not be sustainable since the final service itself will not be liable to tax and question of availment of CENVAT credit naturally would not arise. Even though appellants are at fault by not submitting the details of exemption notification and providing justification as to how their activity is covered by the notification, yet we consider that the appellant deserves another opportunity to present these details to the original adjudicating authority. Accordingly, at this stage itself, we set aside the impugned order and remand the matter to the original adjudicating authority before whom the appellant shall submit details of the exemption notification, explain how the notification covers their case and how the demands are not sustainable. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating to decide the issue after giving reasonable opportunity to the appellants to present their case and in accordance with law.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja 2