Gina Engineering Company Pvt. Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 204-2014 dated 14/03/2014 passed by Commissioner of Central Excise and Service Tax (Appeals-II), BANGALORE ]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, 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?

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

Gina Engineering Company Pvt. Ltd No.330, Double Road, Next To Bank Of Baroda, Indiranagar BANGALORE - 560038 KA Appellant(s)

Versus

Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Shri B.G.CHIDANANDA URS, Advocate #520, AMRUTH NIVAS, 7TH MAIN, 13TH CROSS, RMV 11 STAGE, DOLLARS COLONY, BANGALORE -560094 For the Appellant

Shri S.K. Singh, Commissioner(AR) For the Respondent

Date of Hearing: 06/08/2015

Date of Decision: 06/08/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21786 / 2015

Per : ARCHANA WADHWA

After hearing both the sides, we find that that the demand of Rs.48,97,217/- was confirmed against the appellant by the original adjudicating authority on the ground that they have collected excess service tax from their customers whereas they have deposited less with the Revenue and as such excess amount collected is liable to be paid by them under Section 73A of the Finance Act, 1994. In addition an amount of Rs.2,04,524/- was confirmed under the category of commercial or industrial construction service.

2. On an appeal against the above order, Commissioner(Appeals) has observed that the Revenue has not disclosed the reasons and the evidence for confirmation of demand of Rs.46 lakhs (approximately). As such, he set aside the same and remanded the matter to the original adjudicating authority to offer a reasonable opportunity to the appellant to show-cause against such confirmation of demand by disclosing all the basis for the same. However, he confirmed the other demand of Rs.2,04,524/-.

3. As regards the remand proceedings, we find that the Commissioner(Appeals) has rightly remanded the matter to the lower authorities inasmuch as the appellants were not shown any documentary evidences of collection of excess amount from the customers and the basis for the same. Learned advocate has advanced certain defence in support of his submissions. We make it clear that inasmuch as the matter stands remanded by the Commissioner(Appeals), the appellant is at liberty to raise all the issues before the adjudicating authority.

4. As regards the other demand of Rs.2 lakhs (approximately), learned advocate has drawn our attention to an Order-in-Original dt. 16/11/2011 passed by the Additional Commissioner dropping identical demand raised for the earlier period by holding that construction of school and trust buildings cannot be held to be commercial construction, liable to service tax. As per the learned advocate, the said decision of the Additional Commissioner stands accepted by the Revenue and has not been challenged by them.

5. Inasmuch as the main issue of appeal stands remanded to the original adjudicating authority, we remand the said part of the order also confirming tax to the extent of Rs. 2 lakhs (approximately). The appellant would draw the attention of the adjudicating authority to the earlier proceedings involving the same issue, who would decide the issue in the light of the same. Stay petition as also appeal get disposed of in above manner.

(Order pronounced and dictated in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja 4