Abu Construction vs Commissioner Of Central Excise, Nagpur

(Arising out of Order-in- revision No. 12/2009/ST/REVIEW dated 07/01/2010 passed by the Commissioner of Central Excise, Nagpur )

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S.Pruthi, Member (Technical)

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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?

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ABU Construction :

Appellant

VS

Commissioner of Central Excise, Nagpur :

Respondent

Appearance

None for Appellant

Shri B.Kumar Iyer, Superintendent (A.R) for respondent

CORAM:

Mr. M.V. Ravindran, Member (Judicial) Mr. P.S.Pruthi, Member (Technical)

Date of hearing : 23/04/2015 Date of decision : 23/04/2015

ORDER NO.

Per : M.V. Ravindran

This appeal is directed against Order-in-revision No. 12/2009/ST/REVIEW dated 07/01/2010.

2. When this matter was called out, none appeared on behalf of the appellant. From the case records, we find that this matter was adjourned trice and last time specific notices were issued that the matter will not be adjourned, hence we take up the appeal for disposal in the absence of any representation from the assessee.

3. Heard the Ld. DR and perused the records.

4. On perusal of the records, we find that issue involved in this case is regarding the service tax liability of the services rendered by the appellant whether it fall under maintenance and repairs and also under operations of a plant.

5. On perusal of the records, we find that Maharashtra State Electricity Board, Khaperkheda Thermal Power Station had awarded a contract to the appellant for operation of Dry Ash evacuation and HCSD System, maintenance of the various equipments in the Ash handling plant for the period July 2003 to June 2004. We find from the contract awarded to the appellant, that it very clearly fabricated the amounts applies to the appellant for the clearance of operation of the plant. We find that reviewing authority has demanded and confirmed amount of service tax on the entire amounts received by the appellant from MSEB without apportioning the same to the operation of the plant. It is the case of the appellant that the operation of the plant, during the relevant period was not covered under the category of repair and maintenance services. In our considered view, this points needs reconsideration by the reviewing authority without expressing any opinion on the merits of the case, we set aside the impugned order of the reviewing authority and remand the matter back to the same authority to reconsider the issue afresh and come to a conclusion as the correct tax liability. Needless to say, that the reviewing authority will follow the principles of natural justice before coming to a conclusion.

6. Appeal is disposed of as indicated hereinabove.

(Pronounced & Dictated in court)

(P.S.Pruthi) Member (Technical)

(M.V. Ravindran) Member (Judicial)

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