Custom, Excise & Service Tax Tribunal
Manoj Construction Co vs Commissioner Of Central Excise on 12 January, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. I Appln.No.ST/S/95733/14 APPEAL No.ST/87775/14 (Arising out of Order-in-Original No.190/MAK(190)/ Commr/RGD/2013-14 dated 29/03/2014 passed by Commissioner of Central Excise Customs & Service Tax, Navi Mumbai) For approval and signature: Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) 1. Whether Press Reporters may be allowed to see :No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Manoj Construction Co. Appellant Vs. Commissioner of Central Excise, Respondent Raigad Appearance: Shri.Anil Balani, Advocate for appellant Shri.K.S.Mishra, Addl. Comm. (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial)
Honble Mr. P.R.Chandrasekharan, Member (Technical) Date of Hearing : 12/01/2015 Date of Decision : 12/01/2015 ORDER NO Per: M.V. Ravindran
1. This stay petition is filed for waiver of pre-deposit of an amount of Rs.90,36,464/- confirmed as service tax liability, interest thereof and penalties under various sections.
2. Heard both sides and perused the records.
3. After hearing both sides on the stay petition, we find that the appeal itself can be taken up for disposal as it lies in a narrow compass. As the appellant has already deposited an amount of Rs.43,71,838/- against the confirmed service tax liability, we waive the condition of pre-deposit for balance amount involved and take up the appeal for final disposal.
4. Learned Counsel brings to our notice that confirmation of service tax liability as done by the adjudicating authority is on the following work undertaken by them:
Name of the Party Work done MTNL Construction of telephone exchange building National Bldg. Construction Corp. Ltd., Construction of ME project for RCF, Thal Alibag Balmer Lawrie & Co. Ltd Construction work at Mahul refinery District Sports, Alibag Construction of sports complex at Nehuli, Alibag Ganpati Udyog Construction of residential quarters ITD Cementation Ltd Construction of storm water drain MTNL Construction of telephone exchange building ONGC Water proofing treatment agent BPTP sub-station and other building at ONGC Sasoon Dock Construction of sea food processing unit and cold storage building at Kanhavali, Dighoda, Ransai Dam Transindia Freight Service Pvt. Ltd., Construction of crane work shop for TPS at Panvel Transindia Freight Service Pvt. Ltd., Work of compound wall at Kolka Chandrasekhar Mada Construction of hotel Khopoli Polymer Products Civil work and labour supply District Sports, Alibag Construction of sports complex at Nehuli, Alibag ITD Cementation Ltd.
Construction of storm water drain MTNL Construction of telephone exchange building Mazagaon Dock Ltd., Painting work (repairing) Sasoon Dock Construction of sea food processing unit and cold storage building at Kanhavali, Dighoda, Ransai Dam Transindia Freight Service Pvt. Ltd., Construction of crane work shop for TPS at Panvel Chandrasekhar Mada Construction of Hotel MSPG Co. Ltd., MSET Co. Ltd.
Sasoon Dock Construction of sea food processing unit and cold storage building at Kanhavali, Dighoda, Ransai Dam District Sports, Alibag Construction of sports complex at Nehuli, Alibag Taluka Krida Sankul Samitee, Pen Construction of sports complex at Pen JNPT Renovation of kitchen in B type quarters District Sports, Alibag Construction of sports complex at Nehuli, Alibag Ispat Industries Advance received
5. After bringing to our notice that the aforesaid activities undertaken by him, he would submit that the detailed reply which has been filed by the appellant was not considered by the adjudicating authority in its proper perspective, inasmuch as they had indicated that all the activities as mentioned herein above were either prior to 10/09/14 on which date the service tax liability on commercial and industrial construction service was brought into tax net and/or the adjudicating authority has not considered their plea of abatement of 67% as per Notification No.1/2006-ST and most of the activities undertaken were prior to the date on which the tax liability was brought on the statue on the service.
6. Learned DR would submit that the adjudicating authority has not recorded any findings on the submissions made by the appellants.
7. We find from the replies which were filed by the appellant in respect of the services as indicated herein above in para 4 the appellant had given very detailed explanation as to how the service tax liability does not arise on them. One of the main contention is that the said tax liability under the category of commercial and industrial construction service came into statute from 10/09/2004 and bulk of the work under contracts were executed before 10/09/2004. We find that the adjudicating authority has not recorded any findings on this main plea. It is also noticed that the appellant has claimed abatement of 67% of the value of the contract under Notification No.01/2006-ST, on the ground that the appellant had used all the materials for execution of such contracts. This plea is also not addressed to by the adjudicating authority in his order-in-original.
8. In our considered view that the adjudicating authority who have considered in proper perspective the defence taken by the appellant in their reply to the show-cause notice. In the absence of any reasoning for not accepting the pleas raised by the appellant, we find that the issue needs reconsideration by the adjudicating authority. In view of the above, the impugned order to the extent it confirms that the demand raised as indicated, herein above in para 4 is set aside, and the matter remanded back to the adjudicating authority for reconsidering the issue afresh after following the principles of natural justice. As we are remanding the matter, we are not recording any findings on merits of the case and keep all the issues open.
9. The appeal is allowed by way of remand.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial) pj 1 6