Custom, Excise & Service Tax Tribunal
M/S. Shree Balaji Engicons Pvt. Ltd vs Commr. Of Central Excise, Customs & on 30 August, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Service Tax Appeal No. 341/2011
(Arising out of the Order-in-Original No.CCE/BBSR-II/S.TAX/No.01-COMMR./2011 dated-31/03/2011 passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), BBSR)
M/s. Shree Balaji Engicons Pvt. Ltd.
Applicant (s)/Appellant (s)
Vs.
Commr. of Central Excise, Customs &
Service Tax-BBSR-II
Respondent (s)
Appearance:
Shri Kartik Kurmi, Advocate, Shri S.B. Sharma, Advocate & Shri R. Sharma, Advocate for the Appellant (s) Sri S. Mukhopadhyay, Supdt., (A.R.) for the Respondent(s) CORAM:
HONBLE SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Date of Hearing & Decision :30/08/2017 ORDER NO: F/77143/2017 Per Shri Justice (Dr.) Satish Chandra The present appeal is filed against the Order-in-Original No.CCE/BBSR-II/S. TAX/No.01-COMMR./2011 dated-31/03/2011 and the period of dispute is 01/10/2004 to 31/3/2005; and 1/4/2005 to 31/03/2008 as well as 1/04/2008 to 31/03/2009.
2. The Ld. Counsel for the appellant submits that out of the total demand of Rs.1.65 crores, approximately Rs.8.00 Lacs relates to wrongly availment of CENVAT Credit and the balance is Service Tax. It is the submission of the Ld. Counsel that out of the Service Tax demand, the issue is of includibility of value of free materials supplied by the customers in rendering services i.e. Industrial or Commercial Construction Services in the gross taxable value, while computing the demand. Ld. Commissioner has observed (para 60) that the value of the free issue materials ought to be included in the gross taxable value of services while computing the demand. However, in the impugned order, it is observed that the value of the free issue is to be included in the gross value of the services.
3. The Ld. Counsel for the respondent submits that the amount of Rs.12.00 Lakh (approx.) relates to service tax demand on Commercial or Industrial Construction Services for the period 2004-05, which, in fact, fall under the categories of Works Contract and Cargo Handling Services. It is also the submission of the Ld. Counsel that the ld. Commissioner erred in observing that since there was no transfer of ownership in the materials along with rendering of the said Construction Services, therefore, the Commercial or Industrial Construction Services cannot be considered as Works Contract Services. On the aspect of demand for wrong availment of CENVAT Credit, the ld. Advocate submits that the ld. Commissioner has not given a categorical finding about the wrong availment/non-admissibility of CENVAT credit.
4. The Ld. Counsel for the appellant further submits that even though the appellant availed CENVAT Credit on various input services, could not able to satisfy the Department about its use in rendering taxable output services. It is also not in dispute that the applicant rendered taxable as well as non-taxable services, and due to failure to maintain separate accounts, the Department could not able to ascertain the quantum of CENVAT Credit availed on input services that have been used for providing the taxable and exempted output services. On the aspect of Construction Services rendered prior to 01/06/2007, it is the submission of the Counsel that it cannot be considered as Works Contract Services.
5. On the other hand, it is the submission of the Ld. Counsel for the department that the Ld. Commissioner(para 56) has categorically observed, after analyzing the evidences on record, that the services rendered cannot be considered as Works Contract Services. Lastly, he stated that in relation to the demand of Rs.1.44 crores, the decision of the Larger Bench in the case of Bhayana Builders (P) Ltd. Vs. CST, Delhi [2013 (32)-STR 49 (Tri.-LB), Commissioner Vs. ATR Constructions Pvt. Ltd. [2015 (39) S.T.R. J30 (S.C.) and Commissioner of C. Ex. & Customs, Kerala Vs. Larsen & Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.) may be applicable to the facts and circumstances of the present case. He could not place any contrary judgment.
6. After hearing both the parties, it is evident (supra) that in the impugned order, facts are not clear. The above mentioned case laws were not discussed by the adjudicating authority.When it is so, then we remand the matter to Adjudicating Authority for fresh decision by setting aside the impugned order. The Adjudicating authority is also directed to provide adequate opportunity of hearing to the appellants, and fresh evidence if need be, may be admitted.
7. In the result, the appeal filed by the appellant is allowed by way of remand.
(Dictated and Pronounced in the open Court)
Sd/- Sd/-
(SHRI V. PADMANABHAN ) (JUSTICE DR. SATISH CHANDRA)
TECHNICAL MEMBER PRESIDENT
k.b/-
Service Tax Appeal No. 341/2011
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