Cce, Ludhiana vs M/S.Surinder Kumar

Date of Hearing/Order: 09.07.2015

(Arising out of Order-in-Appeal No.41/CE/LDH/2009 dt.12.03.2009 passed by the CCE (Appeals), Chandigarh)

Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.Sulekha Beevi C.S., Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? no 2. Whether it would 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 Department Authorities? yes

CCE, Ludhiana Appellant

Vs.

M/s.Surinder Kumar Respondent

Present for the Appellant: Shri M.R.Sharma, AR

Present for the Respondent: None

Coram: Honble Mr.R.K.Singh, Member (Technical)

Honble Ms.Sulekha Beevi C.S., Member (Judicial)

FINAL ORDER NO.52392/2015

PER: R.K.SINGH

Revenue is in appeal against Order-in-Appeal dated 12.3.2009 which set aside the Order-in-Original dated 29.9.2008 in terms of which service tax demand of Rs.1,32,021/- alongwith interest and penalty was confirmed. The Commissioner (Appeals) has held that out of taxable value of Rs,.16,94,319/- received by the appellant an amount of Rs.3,67,444/- pertained to services provided at residential colony of Nestle and therefore the same was not liable to tax under Industrial Construction Service. Similarly, Rs.5,71,646/- pertained to painting of goods/material/other article other than building and civil structures. This activity was not covered under the category of Industrial Construction Service. As regards the remaining amount, the Commissioner (Appeals) allowed the benefit of abatement of 67% under Notification NO.15/2004-ST and the remaining 33% was within ambit of exemption limit.

2. Revenue has contended that painting of residential property of Nestle which is a commercial concern should be covered under the category of industrial construction service. It also states that 67% abatement under Notification No.15/2004-ST was not allowed in relation to services of completion and finishing in the form of painting of goods/material/other article.

3. When the case is called today, nobody is present on behalf of the respondent although the notice was issued for todays hearing and no request for adjournment has been received either. Therefore, we proceed to decide the appeal.

4. We have considered the contention of Revenue. We are not in agreement with the contention that the services rendered at the residential houses in which employees of the respondent reside would be tantamount to rendering industrial construction service. Similarly an amount of Rs.5,71,646/- received for painting of goods /material/other article other than building and civil structures would not be part of industrial construction service. Regarding remaining amount, we agree with the Revenue that painting of walls of the floor of commercial building would fall under industrial construction service and being in the nature of completion and finishing service would not be entitled to abatement of 67% under Notification No.15/20045-ST. Disallowing such abatement and allowing exemption upto the value of 4 lakhs, Service tax liability of Rs.36,233/- on taxable value of Rs,.3,55,229/- would arise. As regards the issue of wilful mis-statement or suppression of facts, we find that the only ground to sustain this allegation is that the respondent did not file ST-3 returns nor registered with the Service Tax department. However the Commissioner (Appeals) held that no service tax was liable. In the case of Continental Foundation Jt.Venture vs. CCE, Chandigarh-I-2007 (216) ELT 177 (SC), the Supreme Court has in effect held that mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty - Suppression means failure to disclose full information with intent to evade payment of duty - An incorrect statement cannot be equated with a wilful mis-statement - There cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for purpose of proviso to Section 11A ibid - Mis-statement of fact must be wilful. In view of the said observation of Supreme Court and even the Commissioner (Appeals) holding that no service tax was payable, we are of the view that the allegation of suppression/wilful mis-statement is not sustainable as a consequence of which the demand is rendered time barred.

5. In the light of the analysis above, we dismiss the Revenues appeal.

(dictated and Pronounced in the open court)

(SULEKHA BEEVI C.S.) (R.K.SINGH)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

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