M/S.B.P. Construction vs Cce, Lucknow

Date of Hearing/Order: 06.08.2015

(Arising out of Order-in-Appeal No.69-ST/APPL/LKO/2008 dated 27.2.2009 passed by the CCE (Appeals), Lucknow)

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

M/s.B.P. Construction Appellant

Vs.

CCE, Lucknow Respondent

Present for the Appellant: Shri Ankit Vishnoi, Proxy Counsel

Present for the Respondent: Shri Amresh Jain, DR

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

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

FINAL ORDER NO.52635/2015

PER: R.K.SINGH

Appeal has been filed against Order-in-Appeal dated 27.2.2009 in terms of which the service tax demand of Rs.91,435/- alonwith interest an penalty was confirmed under management, maintenance or repair service.

2. No authorized representative appeared on behalf of the appellant. As there is no request for adjournment, we proceed to decide the appeal on merit.

3. It has been contended in its appeal that the Commissioner (Appeals) has dropped the demand in respect of one contract holding that there were only supplies of goods. It contended that even the contract in relation to which impugned demand is upheld is similar in nature.

4. Learned DR on the other hand pointed out that in respect of the contract under issue, the service rendered was without supply of goods and he drew our attention to the invoices placed at page 92 to 102 of the appeal paper book. He submitted that the charges recovered were only for service without any supply of goods. He also pointed out that as per the contract it has been mentioned that the goods were supplied by BSNL. Ld.DR also contended that as the appellant never took registration, did not file any ST-3 return and provide the required information in spite of several reminders so much so that the information had to be obtained from BSNL and therefore extended period is rightly invokable.

4. We have considered the contentions of learned DR. The contention is raised in this appeal memorandum that service was rendered as part of contract involving supply of goods. However, as pointed out by the learned DR and as is also evident from the invoices referred to earlier, the entire amount recovered from BSNL was relating to only service component and did not involve supply of goods at all. As a matter fact, as per the condition of contract, all the materials were to be supplied by BSNL and as per agreement dated 27.7.2005 (schedule of payment) only refers to the payment related to service rendered without any supply of goods. Thus it is evident that gross amount received by the appellant in respect of which the impugned demand was confirmed only was for rendering service and did not involve any amount in relation to supply of goods at all. Further as has been pointed out by learned DR apart from not taking registration and submitting ST-3 returns, the appellant refused to supply information regarding the amount received for service rendered inspite of several reminders and so the information had to be obtained from BSNL (the service recipient) This conduct of the appellant clearly establishes suppression on the part of the appellant to evade service tax. Therefore extended period as well as mandatory penalty are rightly invoked.

5. In the light of the foregoing, we do not find any infirmity in the impugned order. The appeal is therefore dismissed.

(Dictated and Pronounced in the open court)

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

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

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