Commissioner Of Central Excise vs R.K. Construction

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/85373/13 ST/CO/91033/13

(Arising out of Order-in-Appeal No. GOA/CEX/GSK/76/2012 dated 25.10.2012 passed by Commissioner of Central Excise, Customs and Service Tax, Goa)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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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 : No 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?

Commissioner of Central Excise Goa Appellant Vs.

R.K. Construction Respondent

Appearance:

Shri B. Kumar Iyer, Supdt. (AR) for appellant Shri Bharat Raichandani, Advocate for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 14.09.2015 Date of Decision: 14.09.2015

ORDER NO

Per: M.V. Ravindran

This appeal is filed by Revenue against Order-in-Appeal No. GOA/CEX/GSK/76/2012 dated 25.10.2012. The respondent-assessee has also filed a Cross Objection against the very same Order-in-Appeal. Both are disposed of by a common order.

2. Heard both sides and perused the records.

3. The first appellate authority has set aside the order-in-original which was challenged before him by recording the following:- I have examined the impugned order and submissions. When the Show Cause Notice is issued on the grounds for classification of the services under one category, it is not possible for the adjudicating authority to make a new case different from that alleged in show cause notice. Such an attempt would tantamount to going beyond the show cause notice. The same would be in gross violation of the principles of natural justice, as held in :

1. Hindustan Polymers Co. Ltd. vs Collector of Central Excise, Guntur 1999 (106) E.L.T.(S.C.)

11. GTC Industries Limited vs Collector of Central Excise, New Delhi 1997 (94) E.L.T. 9 (S.C.)

111. Commissioner of Central Excise, Meerut vs Hello Mineral Water P. Ltd. 2001 (130) E.L.T. 716 (Tri. - Del.)

IV. Enpee Earthmovers vs Commissioner of Customs & Central Excise, Goa 2012 (27) S.T.R. 48 (Tri.-Mumbai) Such orders 'which go beyond the scope of show cause notice are not maintainable under law.

Impugned order set aside, Appeal allowed.

4. On perusal of the records, we do find that the show-cause notice issued to the appellant indicates that the classification of the services is to be considered under the category of Commercial or Industrial Construction Services and directed the respondent to show-cause why it should not be done so whereas the adjudicating authority has confirmed the demand of service tax on Construction of Residential Complex service which, the first appellate authority has correctly held that the adjudicating authority has traversed beyond the allegation of the show-cause notice. If the assessee is not put to notice under which category the service tax sought to be demanded, the conclusion reached by the first appellate authority is correct and does not suffer from any infirmity. Be that as it may, we also find that the contract which has been entered by the respondent is a works contract and the entire contract has been executed prior to 01.06.2007. In our view the issue is no more res integra as the judgement of the Honble Apex Court in the case of CCE v. Larsen and Toubro Ltd and Ors.  2015-TIOL-187-SC-ST it has been held that works contract cannot be vivisected prior to 01.06.2007 for taxing separately.

5. In view of the foregoing, we hold that the impugned order is correct and the appeal filed by the Revenue is devoid of merits.

6. Appeal filed by Revenue is rejected. Cross Objection filed by the respondent is also disposed of. (Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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1 4 Appeal No. ST/85373/13 ST/CO/91033/13.