Custom, Excise & Service Tax Tribunal
Commissioner Of Service Tax Mumbai-I vs Lloyd Insulation India Ltd on 7 August, 2018
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IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Appeal No. ST/87872/2013
(Arising out of Order-in-Appeal No. 60 dated 26.02.2013 passed
by the Commissioner of Central Excise & Service Tax (Appeals),
Mumbai).
Commissioner of Service Tax, Mumbai Appellant
Vs.
M/s Lloyd Insulation India Ltd. Respondent
Appearance:
Shri M.P. Damle, Asstt. Commissioner (AR) for Appellant Shri Mohitrao Jadhav, Advocate for Respondent CORAM:
HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MR. S. SRIVASTAVA, MEMBER (TECHNICAL) Date of Hearing: 07.08.2018 Date of Decision: 07.08.2018 ORDER NO. A/87429 / 2018 Per: Dr. D.M. Misra This is an appeal filed by the Revenue against Order-in- Appeal No. 60 dated 26.02.2013 passed by the Commissioner of Central Excise & Service Tax (Appeals), Mumbai.
2. Briefly stated facts of the case are that the respondents were providing "construction services" (commercial and industrial building of civil structure). The respondent was awarded the 2 contract for design, supply and erection of pre-fabricated, pre- engineered warehouses, including roof sheeting, civil and electrical work at ICD, Dronagiri. The said warehouses were for exclusive use of Container Corporation of India (CONCOR) for storing of imported and export containers for transport of cargo through Railways and for further forwarding and receiving from the Port. Alleging that Service Tax is payable on such construction service, show-cause notice was issued to the respondent for recovery of Service Tax of Rs.45,39,253/- not paid on the said services with interest and penalty. On adjudication, the demand was confirmed with interest and penalties under Section 76, 77 & 78 of the Finance Act, 1994. Aggrieved by the said order, the respondent filed an appeal before the learned Commissioner (Appeals), who in turn, allowed their appeal. Hence, the present appeal by the Revenue.
3. Learned AR for the Revenue reiterating the grounds of appeal submitted that the respondent was awarded the contract for erection and commissioning of warehouse at Dronagiri for storing import and export cargo. It is their ground that the learned Commissioner (Appeals) has erred in observing that the case against the respondent is sustainable only when it is proved that the services rendered by them were not in respect of Railways. In other words, the learned Commissioner (Appeals) has held that the Revenue has to prove that the container yard erected by the respondent fall under the exception clause of the taxable services.
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4. Learned Advocate for the respondent has submitted that the container yard erected at Dronagiri as per the work order issued by CONCOR meant to use for storage of import and export cargo and is the part of Railway Shed, hence falls within the exception clause of the taxable services as defined under Section 65(25b) of the Finance Act, 1994, hence, no Service Tax is required to be paid on such construction services.
5. Heard both sides and perused the records.
6. We find that the short issue involved in the present appeal for determination is whether design, supply and erection of warehouse for exclusive use of CONCOR to store imported and export containerized cargo would fall under the scope of exclusion clause of construction work of Railways. In the impugned order, the learned Commissioner (Appeals) has decided the issue in favour of the respondent on the ground that the Revenue could not establish that the construction undertaken by the respondent were not in relation to Railways. We do not find merit in the said findings of the learned Commissioner (Appeals) inasmuch as the burden to claim exemption from the levy requires to be established by the claimant that his case falls within the four corners of the exemption clause. In the present case, it is the respondent's burden to establish before the authorities below through cogent evidence that the construction undertaken by them relates to Railways. In the interest of justice to allow an opportunity to the respondent to establish their case, the mater is remanded to the learned Commissioner (Appeals) who shall examine whether the construction undertaken by the 4 respondent fall within the exception clause of the definition of 'construction service' as was in force during the relevant time.
7. The appeal is allowed by way of remand.
(Operative portion of the order pronounced in Court) (S. Srivastava) (Dr. D.M. Misra) Member (Technical) Member (Judicial) Sinha