M/S.Pkm Erectors vs Commissioner Of Central Excise & ...

(Arising out of Order-in-Original No.24/COMMR/ST/GHY/12-13 dated 21.3.15 passed by the Commissioner of Central Excise & Service Tax, Guwahati.)

M/s.PKM Erectors Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise & Service Tax, Guwahati Respondent (s)

Appearance:

Shri K.Sharma, C.A. for the Appellant (s)

Shri A.K.Biswas, Supdt.(A.R.) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing:- 5.5.2015 Date of Pronouncement :- 5.5.2015

ORDER NO.FO/A/75256/15

Per Dr. D.M. Misra.

1. This is an Application seeking waiver of pre-deposit of Service Tax of Rs.2.85 Crores and equal amount of penalty imposed under section 78 and penalty of Rs.10,000/- under section 77 of the Finance Act, 1994.

2. At the outset Shri K.Sharma, ld.C.A. submits that during the relevant period, the Applicant had rendered services mainly under the category of erection, commissioning and installation service to M/s.I.O.C.L., N.T.P.C., M/s.Zenith Erectors (P) Ltd. etc. situated in the North-East Region. He has submitted that the major portion of the demand relates to supply of material along with erection, commissioning services rendered during the relevant period. He submits that during the course of adjudication proceeding they have deposited an amount of Rs.33,41,274/- and subsequently after the order was passed, deposited Rs.10.00 Lakhs. It is his submission that since the Applicant is situated in Bodo Territory Autonomous District, a disturbed area, therefore, they could not file their reply to the show cause notice nor could attend the hearing before the ld.Commissioner. He prays that they are prepared to deposit a further amount of Rs.5.00 Lakhs and submitted that the matter may be remanded to the ld.adjudicating authority for deciding the issues afresh.

3. The ld.A.R. for the Revenue does not dispute the aforesaid facts and has no objection in remanding the case to the adjudicating authority.

4. After hearing both sides for some time we find that the Appeal itself could be disposed of at this stage. Accordingly, with the consent of both sides the appeal itself is taken up for disposal.

5. We find that during the relevant period i.e. from April, 2007 to December, 2011, the appellant had rendered taxable services under the category of erection, commissioning or installation services, management, maintenance or repair services, manpower recruitment services etc. Major portion of the demand however as submitted by the ld.C.A., relates to rendering of services under the category of erectioning, commissioning or installation services. It is the claim of the appellant that along with the rendering of services under the said category, they have supplied materials, value of which ought to be excluded in computing the Service Tax liability. From the records we find that the appellant had neither filed reply to the show cause notice nor participated in the adjudication proceeding. Furnishing reasons, the ld.C.A. submitted that since the Appellant are situated in the disturbed area of Assam, therefore they could not file reply in time nor could appear before the ld.Commissioner during the course of hearing. However, before us he undertook to file the reply within 8(eight) weeks and appear before the Commissioner thereafter on the date of hearing. In the interest of justice we are of the view that the Appellant be given a chance to file the reply and attend the hearing to rebut the allegations labeled against them in the show cause notice. At this stage the offer to deposit further amount of Rs.5.00 Lakhs by the ld.C.A. for the Appellant seems to be reasonable. Consequently we direct the appellant to deposit Rs.5.00 Lakhs within a period 8(eight) weeks from the date of communication of the order and report compliance directly to the ld.Commissioner. The ld.Commissioner after recording compliance would decide the matter afresh taking into consideration the evidences on record and the evidences that would be filed by the appellant during the course of adjudicating proceeding. The Appellant are directed to file reply to the show cause notice within eight weeks from the date of communication of this order. Appeal is allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

4 Appeal No. S.T. 71316/13