Custom, Excise & Service Tax Tribunal
Kaypee Interior Projects Pvt Ltd vs Commissioner Of Central Excise, ... on 30 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21846 / 2014 Application(s) Involved: ST/Stay/26554/2013 in ST/26235/2013-DB Appeal(s) Involved: ST/26235/2013-DB [Arising out of OIO No.08-2013 dated 23/01/2013 passed by Commissioner of Central Excise and Service Tax , HYDERABAD-I ] Kaypee Interior Projects Pvt Ltd Plot No.461, Road No.36, Jubilee Hills, HYDERABAD - 500033 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:
Shri G. Natarajan, Advocate SWAMY ASSOCIATES G-8, FORTUNA ICON APARTMENTS, JODIDHAR ASWATHAPPA FARM, BEHIND NAGARJUNA, SAHAKAR NAGAR, BANGALORE - 560092 KARANATAKA For the Appellant Dr. A.K. Nigam, 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: 30/09/2014 Date of Decision: 30/09/2014 Order Per : B.S.V.MURTHY The appellant is engaged in providing interior decoration service, commercial or industrial construction service, works contract service. Besides demanding service tax under various categories from the appellant for the period from April 2006 to May 2011, service tax in respect of GTA received by them has also been demanded. There is a total service tax demand of Rs.2,11,03,632/- with interest and penalty under various sections of Finance Act, 1994 has also been imposed.
2.1. The learned counsel on behalf of the appellants submits that there are several issues in this case. However, first of all, he submits that in this case the appellant had paid excess service tax under the category of interior decoration service even though the actual category of service was works contract or commercial or industrial construction service. He submits that Commissioner has taken a view that excess payment made under one category of service can be adjusted against short payment under other heading and therefore once adjustments have been made and if such adjustments have been made, it is his submission that appellant may not be liable to pay any amount of service tax according to their calculation. Thereafter he put forth his submission in respect of each service.
2.2. As regards interior decoration service, total service tax payable as per the show-cause notice was Rs.4,48,113/- whereas the appellant had paid an excess amount of Rs.77,54,630/-.
2.3. As regards commercial or industrial construction service, the demand is for Rs.1,16,61,055/- and the abatement claimed by them has been rejected on the ground that the same is not admissible for finishing services. He submits that this is not correct and appellants have the details of materials used for providing of service and he also submits that the value of the materials used comes to more than 67%. He relies on the decisions in the case of Intertouch Metal Buildings Pvt. Ltd. Vs. CST, Chennai [2009(16) STR 175 (Tri. Chennai)] and Lloyd Insulations (India) Ltd. Vs. CST, Chennai [2011(21) STR 590 (Tri. Chennai)]. In both these cases, unconditional waiver was granted. He also relies upon letter F.No.B2/8/2004-TRU dt. 10/09/2004 wherein it has been clarified that abatement of 67% had been provided in respect of composite contract where the gross amount charged includes value of the materials used. He submits that the appellant would be eligible either for 67% of the total cost as abatement or the benefit of the Notification No.12/2003 both of which have been denied. He submits that out of the demand, the appellants have paid an amount of Rs.20,62,769/-. He submits that the liability would be substantially less.
2.4. There are two demands under works contract service in respect of on-going contracts and fresh contracts. In respect of ongoing contracts, composition has not been allowed and the benefit of 67% abatement or Notification No.12/2003 if allowed, the demand would come down to Rs.27,50,964/- only as against the demand of more than Rs.82 lakhs. In respect of fresh contracts after June 2007, he submits that out of the total demand of more than Rs.2.14 crores, the appellant has already paid more than Rs.2 crores. The excess amount available of more than Rs.59 lakhs is sufficient to cover this deficiency.
2.5. Next demand is for an amount of Rs.7,70,597/- which has been confirmed on the ground that exemption was not available in respect of works contract service provided to SEZ units between 03/03/2009 to 20/05/2009. He submits that the quantification is wrong and the correct amount which is liable to be paid has been paid. In respect of GTA service also, he submits that appellant has deposited the entire amount of service tax payable and they have excluded the cases where the total amount paid is less than Rs.1500/- since there is no liability on such GTA service.
3. The above submissions made by the learned counsel show that the amount deposited by the appellants covers the entire demand but at this stage he requests that the matter may be remanded to the original adjudicating authority for reconsideration of the denial of abatement, exemption to SEZ units, adjustment of excess amounts paid towards the levy, reconsideration of penalty and limiting the penalty to the extent of short payment only, if any, etc. We find that appellant deserves another consideration in view of the submissions made hereinabove in the hands of the learned Commissioner. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration of all the issues.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja 4