Custom, Excise & Service Tax Tribunal
Cce, Bhopal vs Amar Construction Co on 22 November, 2016
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:22.11.2016
Service Tax Appeal No.1811/2011-CU(DB)
[Arising out of Order-in-Appeal No.185/BPL/2011 dated 20.09.2011 passed by the Commissioner (Appeals), Central Excise, Bhopal]
CCE, Bhopal Appellants
Vs.
Amar Construction Co. Respondent
Appearance:
Shri Ranjan Khanna, DR for the appellant. Shri Sanjay Kumar Tiwari, Advocate for the respondent. Coram: Honble Shri S. K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No.55260/2016 Per B. Ravichandran:
The Revenue is in appeal against the order dated 20.09.2011 of Commissioner (Appeals), Bhopal. The respondents are engaged in the activity of Commercial Construction. The dispute in the present appeal relates to the services provided by the respondent for Bhopal Vikas Pradhikaran for construction of commercial portion of the Inter-state Bus Terminal and for M.P. Housing Board for construction of Sarnath Commercial Complex and Satellite Plaza Commercial Complex The proceedings initiated against the respondent for recovery of service tax concluded by the Original Authority, who confirmed demand of Rs.8,26,060/- with reference to construction of M.P. Housing Board and dropped the demand of Rs.15,53,555/- with reference to construction of commercial portion of ISBT, Bhopal. Against dropping of the demand as well as against appropriation of service tax paid by M.P. Housing Board towards the liability of the respondent, the Revenue filed appeal. The Commissioner (Appeals) rejected the appeal of the Revenue. Aggrieved, the present appeal has been filed.
2. We have heard both the sides and perused the appeal records.
3. The point for consideration is the service tax liability of the respondent for construction activity of commercial portion of ISBT. We find that the Revenue is contesting the finding of the lower authorities on the ground that the exclusion available under Commercial or Industrial Construction Service for transport terminals cannot be applied to the commercial portion of the ISBT constructed by the respondent. We find that in terms of Section 65(25b) of Finance Act, 1994, the taxable service does not include such service provided in respect of the roads, airports, railways, transport terminals, bridges, tunnels and dams. Admittedly, ISBT is transport terminal which is clearly excluded from the definition of Commercial or Industrial Construction Service for service tax purposes. When the construction of ISBT is not a taxable service, there cannot be any bifurcation of that activity for service tax. We find no substance in the appeal by the Revenue on these grounds.
4. The second point is relating to the payment of service tax by M.P. Housing Board for whom the commercial construction was carried out by the respondent. The impugned order clearly mentioned that the service tax liability in full has been discharged by the M.P. Housing Board and the same has not been disputed. The only point of contest by the Revenue is that the amount should have been deposited by the respondent not by M.P. Housing Board. In view of the clear finding by the lower authorities that the service tax liability has been fully discharged by the Housing Board and the same has been appropriated towards the duty liability of the respondent, we find no justification in the plea of the Revenue for another payment of service tax by the respondent. We note that in the respondents own case, on an identical situation, the appeal by the Revenue was rejected vide Final Order No.A/50671 of 2014 dated 21.02.2014.
5. In view of the above discussions and analysis, we find no reason to interfere with the impugned order. The appeal by the Revenue is rejected.
[order dictated and pronounced in the open court] (S.K. Mohanty ) Member (Judicial) ( B. Ravichandran ) Member (Technical) Ckp.
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