M/S. Nirman Construction vs Commr. Of Central Excise, Bolpur

(Arising out of the Order-in-Original No. 51/COMMR/ST/BOL/11 dated-July 6, 2011 passed by the Commr., Central Excise, Bolpur)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE 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?

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 ?

M/s. Nirman Construction APPELLANT(S) VERSUS Commr. of Central Excise, Bolpur RESPONDENT(S)

APPEARANCE

Sri S. Chakraborty, Advocate Sri A. Biswas, Advocate

FOR APPELLANT(S) Sri S. Sharma, Commr. (A.R.) FOR THE RESPONDENT(S)

CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 24/06/2015

ORDER NO.FO/A/756316/2015 Per DR. D.M. MISRA

This is an application seeking waiver of pre-deposit of Service Tax of Rs.14.12 Crores and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.

2. At the outset, the Ld. Sr. Advocate Dr. Chakraborty for the applicant submits that the present demand notice was issued on 9/8/2010 demanding Service Tax for the period from 2005-06 to 2008-09 alleging non-payment/short payment of service tax under the taxable category of commercial or industrial construction services and management maintenance or repair of immovable or moveable properties. The demand was computed on the basis of difference in the value shown in the relevant ST-3 Returns filed with the Department and that of the balance sheet of the respective years. The Ld. Sr. Advocate submits that pursuant to the said show cause notice, they have filed their reply, whereby, they have submitted in detail the work orders executed by them during the relevant period and the services rendered by them were whether taxable or otherwise. He has submitted a brief chart showing the detail works executed during the said period so as to advance his point that some of the services related to rendering of repair, maintenance and construction of roads which are exempted from service tax levy, also since they were not following the mercantile systems of accounting, present demand related to the dues of earlier period which was received during the demand period. He submits that the Ld. Commissioner though accepted that the show cause notices has not provided the details of the services rendered, however, proceeded to decide the issue, only by referring to the interpretation of Board Circular and other relevant provisions of law without analyzing the work orders and their submissions advanced in their reply to the show cause notice rebutting the allegation of liability of Service Tax mentioned in the show cause notice. He prays that the matter may be remanded to the Commissioner for re-consideration of the facts.

3. Per contra, the Ld. A.R. for the Revenue submits that all these related documents necessary for ascertaining the liability had not been submitted by the applicant, being categorically recorded by the Ld. Commissioner.

4. In his rejoinder, the Ld. Advocate referred to the relevant paras of reply to the show cause notice whereby, it is categorically submitted that copies of the relevant work orders of the respective clients are enclosed.

5. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit and with the consent of both sides, we take up the appeal for disposal.

6. We find that the demand has been raised and confirmed on the basis of the difference in value between the ST-3 Returns and balance sheet of the respective years. It is the contention of the appellant that even though they have furnished various work orders to show that the allegations in the show cause notice are incorrect and the demand raised accordingly not sustainable, however, the said submissions were not analysed nor the work orders scrutinized by the adjudicating authority. We find that the Ld. Commissioner though accepted that the show cause notice has not reflected detailed facts but he proceeded to decide the issue without analyzing the facts submitted by the Appellant in their reply to show cause Notice with supporting documents/evidences. In these circumstances, we are of the view that the Ld. Commissioner has proceeded in a wrong direction without ascertaining the facts. Hence, the case needs to be re-adjudicated. In the result, we remit the matter to the Ld. Commissioner to decide the issue afresh taking into consideration all the relevant work orders and documents/evidences submitted by the applicant, and also or that would be filed during the adjudication. Needless to mention that reasonable opportunity of hearing be allowed to the appellants. All issues are kept open. Appeal is allowed by way of remand. S.P. disposed off.

(Dictated and pronounced in the open court) Sd/- 30/06/2015 Sd/- 29/06/2015 (I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) k.b/-

Service Tax Appeal No 460/2011

4