Custom, Excise & Service Tax Tribunal
M/S. Shilpkar Interiors Designers ... vs Commissioner (Adjudication) on 25 March, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM,
NEW DELHI-110066
Court No. III
ST/Stay/1015/2010 in &
Service Tax Appeal No. 575 of 2010
[Arising out of Order-in-Original No. 2-3/JM/10 dated 25.01.2010 passed by the Commissioner (Adjudiucation) Service Tax, New Delhi].
Date of Hearing: 25th March, 2011
Dated of decision: 25th March, 2011
For approval and signature:
Honble Dr. C. Satapathy, Technical Member;
Honble Shri D.N. Panda, Judicial Member
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 authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Shilpkar Interiors Designers Consultant Pvt. Ltd., Appellants
Vs.
Commissioner (Adjudication),
Service Tax, New Delhi Respondent
Appearance:
Present for the Appellant : Shri P.K. Sahu with Shri Prashant Shukla, Advocates Present for the Respondent : Shri K.K. Jaiswal, D.R. Coram: Honble Dr. C. Satapathy, Technical Member Honble Shri D.N. Panda, Judicial Member FINAL ORDER NO. DATED Per D.N. PANDA:
Both the appeal and stay application were taken together with the consent of both sides.
2. The adjudication involves two periods. First period relates to 10.9.2004 to March, 2007 giving rise to service tax demand of Rs. 76,74,225/- for the period 10.9.04 to 16.6.05 and Rs. 27,30,176/- as well as Rs. 49,44,049/- for the period 16.6.05 to 31.3.07. Second period relates to October, 2007 to March, 2008 which gives rise to service tax demand of Rs. 80,58,613/-. According to the Revenue the appellants were providing completion and finishing service in respect of building or civil construction or part thereof and wrongly availed benefit of Notification No. 15/2004-ST dated 10.9.2004 as amended (not in force from 10.9.2004 to 28.2.2006) and Notification No. 1/2006-ST dated 1.3.2006, paying service tax on 33% of the value of the contract, availing exemption on 67% of the value thereof. Revenues contention is that the completion and finishing service does not warrant any exemption claim by the appellants as above.
3. Contention of learned Counsel appearing on behalf of the appellants was that execution of works contract having become taxable w.e.f. 1.6.2007 the appellants were not liable to tax for the nature of service provided during aforesaid period and service tax was wrongly determined under the category of Commercial and Industrial Construction services. The authority failed to examine detailed evidence filed by appellant before him. So also the contract copies with the Chartered Accountants certificate was produced before the Authority to show the quantum of material used for execution of contract was not examined. There was total failure to understand that the appellants service became taxable w.e.f. 1.6.2007 and not prior to that. There cannot be denial of abatement benefit when the materials were involved in executing the work and wherever required benefit of Notification NO. 12/2003-ST dated 28.6.2003 is to be given. He relied on the decision of the Honble High Court of Karnataka in the case of Turbotech 2010 (18) STR 545 (Kar.). Learned Counsel also stated that the goods which have been used in the work has suffered VAT. Precisely, his submission is that various submissions made in the course of hearing were not considered and C.As certificate was ignored for which the appellant has been prejudiced. On all these counts, he argued that there should be waiver of pre-deposit during pendency of the appeal. Learned Counsel also stated that the interim order may be passed taking into account the evidences filed by the appellants through paper book in Tribunal.
4. Ld. D.R. supports order of the learned Authority below.
5. Heard both sides and perused the record.
6. We noticed that there were various contracts executed by the appellants in terms of different works orders as is apparent from Para 52 of the impugned order. Each contract needs examination to ascertain the incidence of tax in respect of each such contract and appropriate class of service in respect of each taxabale service is to be determined. Evidence available to determine the quantum of abatement, if any permissible cannot be ignored. The classification being embedded to statute there is no confusion to understand classification according to the Rules laid down. Falling of a particular activity under appropriate clause needs thorough examination in respect of each work order. We do appreciate that in the meantime there is quite significant development made in respect of subject of service tax relating to works contract and other taxable entries.
7. When the grievance as aforesaid came out before us and due to lack of appropriate examination of the contract, it would be proper to dispense with pre-deposit and without keeping the matter pending in Tribunal it should be remitted to grant fair opportunity of hearing for consideration of pleading of the appellants. Therefore, dispensing with requirement of pre-deposit we remit the matter back to the learned original authority to examine the pleadings and evidence of the appellants and materials on record on the touch stone of law governing the subject as well as taking into consideration the judicial pronouncement and also decisions of the Tribunal in the case of Instrumentation Ltd. vs. CCE, Jaipur (in service tax appeal No. ST/79/2007) and Alstom Projects Ltd. vs. CCE, Delhi (in service tax appeal No. 87/2008), both decided on 14.3.2011 and dispose the matter expeditiously granting fair opportunity of hearing.
8. It is open to the appellants to raise all legal pleadings as that shall be permissible before the original Authority.
(Pronounced in the Open Court.) (Dr. C. SATAPATHY) TECHNICAL MEMBER (D.N. PANDA) JUDICIAL MEMBER RK 5