A Ramesh, Proprietor vs Commissioner Of Central Excise, ...
- CitationAppeal No. 03/2014 dated 21/02/2014 passed by the Commissioner of Central Excise, Customs a
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following: where the appellant, through counsel, fairly concedes that a legal plea (that fabrication of structurals amounts to manufacture so as to exclude service tax liability) was never raised before the original adjudicating authority, the appellate authority will not decide that plea for the first time; instead the impugned order is set aside and the matter is remanded to the original adjudicating authority, with liberty to the appellant to raise the legal issue, for consideration and fresh decision.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 03/2014 dated 21/02/2014 passed by the Commissioner of Central Excise, Customs and Service Tax, Visakhapatnam-II ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
A Ramesh, Proprietor M/s. Virtuous Technologys APIAIE Plot No. 8, APHC, Pedagantyada Visakhapatnam 530 044 Andhra Pradesh Appellant(s)
Versus Commissioner of Central Excise, Service Tax and Customs Visakhapatnam-II Central Excise Building, Port Area, Visakhapatnam 530 035 Andhra Pradesh Respondent(s)
Appearance:
Mr. Y. Sreenivasa Reddy, Advocate C-403, Keshavdale, Anand Nagar, Khairatabad Hyderabad 500 004 Andhra Pradesh For the Appellant
Mr. Pakshi Rajan, AR For the Respondent
Date of Hearing: 29/01/2015 Date of Decision: 29/01/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order No. 20216 / 2015
Per: ARCHANA WADHWA
We find that out of the total service tax of Rs. 36.64 Lakhs (Rupees Thirty Six Lakhs Sixty Four Thousand approximately) the appellant has already deposited an amount of Rs. 15.06 Lakhs (Rupees Fifteen Lakhs Six Thousand approximately). We accordingly dispense with the balance dues and proceed to decide the appeal itself with the consent of both sides.
2. The said service tax stands confirmed under the category of Erection, Commissioning or Installation Services, in respect of the structurals being fabricated by the appellant at the site. A small portion of the demand stands confirmed under Supply of Tangible Goods Services.
3. Learned advocate submits that the fabrication of structurals amounts to manufacture and as such no service tax liability would arise against them. However he fairly agrees that the said legal plea was not raised before the original adjudicating authority and as such there is no consideration by him.
4. In view of the above we set aside the impugned order and remand the matter to the original adjudicating authority with a liberty to the appellant to raise the said legal issue, which shall be considered by the adjudicating authority and matter will be re-decided accordingly. Stay petition as also the appeal gets disposed of in the above manner. (Order pronounced and dictated in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER
iss
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