Custom, Excise & Service Tax Tribunal
M/S.Kumar & Prabhakar Construction ... vs Commissioner Of Central Excise & ... on 21 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-71218/13
&
Appeal No.ST-71177/13
(Arising out of Order-in-Appeal No.297/Pat/S.Tax/Appeal/2013 dated 25.07.2013 passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Kumar & Prabhakar Construction Co.(P) LTd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise & Service Tax, Patna
Respondent (s)
Appearance:
Shri Swatantra Kumar, Consultant for the Appellant (s) Shri M.Singh, Addl.Commr.(AR) for the Respondent (s) CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical) Date of Hearing:- 21.09.2015 Date of Pronouncement :- 21.09.2015 ORDER NO.FO/A/75520/2015 Per Dr. D.M. Misra.
1. The present Application is filed seeking waiver of pre-deposit of Service Tax of Rs.43.72 Lakhs and equal amount of penalty under section 78 and penalty of Rs.5,000/-under section 77 of the Finance act, 1994.
2. At the outset Shri Swatantra Kumar, ld.Consultant submits that the ld.Commissioiner(Appeals) has dismissed their appeal for non-compliance with the direction of pre-deposit of the entire amount of Service Tax. He submits that the Applicant during the period 2005-06 rendered the services of construction of bridges under the category of Commercial & Industrial Construction Services which was exempted from payment of duty. However, the ld.Commissioner(Appeals) rejected their contention for non-production of sufficient evidences before him. He submits that the agreement between the Bridge Engineer and the Applicant enclosed with the present Appeal would show that the works carried out by them relate to Construction of Bridges. However, he fairly accepts all that the Work orders and other evidences are neither placed before the ld.Commissioner(Appeals) nor enclosed with the present Appeal Memorandum. He submits that the Applicants financial condition is bad as they stopped receiving any work order. At this stage, he offers to deposit Rs.2.00 Lakh and prays that the matter may be remanded to the ld.Commissionier(Appeals) for deciding the issue on merit afresh.
3. The ld.AR for the Revenue reiterated the findings of the ld.Commissioner(Appeals). He submits that since sufficient evidences were not placed before the ld.Commissioner(Appeals) it was difficult on his part to ascertain whether the services rendered by the Applicant are in the nature of Construction of Bridges or other civil Construction Work. He has no objection in remanding the case to the ld.Commissioner(Appeals) for deciding the issue afresh on merit.
4. After hearing both sides for some time we find that the Appeal itself could be disposed of at this stage. Accordingly, with the consent of both sides the Appeal itself is taken up for disposal.
5. We find that the ld.Commissioner(Appeals) has not gone into the merits of the case while passing the impugned Order-in-Appeal; he has dismissed the Appeal filed by the Appellant for non-compliance with the direction of pre-deposit of entire amount of Service Tax. Considering the overall circumstances including financial hardship the offer to deposit Rs.2.00 Lakhs seems to be reasonable. Accordingly, the Appellant is directed to deposit Rs.2.00 Lakhs within a period of 8(eight) weeks from the date of the communication of the Order and report compliance directly to the ld. Commissioner(Appeals). The ld. Commissioner(Appeals) after recording compliance would proceed to hear the case on merit without insisting any further pre-deposit. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.
(Pronounced and dictated in the open court.) SD/ SD/ (H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 3 Appeal No. ST-71177/13