M/S Skyline Contractors Pvt. Ltd vs Cst, Delhi
- CitationAppeal No. ST/1075/2010-CU(DB)
Ratio decidendi
The rule this decision rests on
Value of material supplied free of cost by the service recipient is not includible in the assessable value for the purpose of discharging service tax liability or for claiming abatement, as laid down in the earlier decision of this Tribunal in Bhayana Builders, which the court applies to remand the matter. Mere overlap of periods covered by two show cause notices is not, by itself, evidence that service tax has been demanded twice on the same transactions; the assessee must show overlap of the transactions themselves, and may do so at de novo adjudication. A legal plea not raised before the primary adjudicating authority will not be considered by the appellate forum in the first instance, but any legal plea may be raised during de novo adjudication.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Original No. 12-ST/PKJ/CCE/ADJ/10 dated 20.4.2010 passed by the Commissioner (Adj.), Service Tax, New Delhi)
For Approval & Signature :
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?
2. Whether it would 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 Department Authorities?
M/s Skyline Contractors Pvt. Ltd. Appellant
Vs.
CST, Delhi Respondent
Appearance:
Shri S.K. Sarwal, Advocate - for the Appellant
Shri Amresh Jain, D.R. - for the Respondent
Coram :Honble Mr. R.K. Singh, Member (Technical)
Honble Ms. Sulekha Beevi, C.S., Member (Judicial)
F. Order No. 52341/2015
Per R.K. Singh :
The appeal has been filed against order-in-original dated 20.4.2010 in terms of which service tax demand of Rs.10,62,65,767/- was confirmed along with interest and penalties. The said demand was confirmed on the ground that the value of material supplied free of cost was not included in the assessable value.
2. The ld. Advocate for the appellant states that in the light of judgement of CESTAT in the case of Bhayana Builders Vs. CST, Delhi - 2013 (32) STR 49 (Tri.-LB) value of free supply is not includible for the purpose of discharge of duty liability or for the purpose of claiming abatement. The ld. Advocate also stated that from 1.6.2007 service was classified under works contract service in which case, although he was not entitled to 67% abatement, he was entitled to the benefit of Notification No. 12/2003-ST and Rule 2(a) of the Service Tax Determination Rules (Determination of Value) Rules, 2006. He also stated that certain period is overlapping between the Show Cause Notice dated 19.6.2008 issued to the appellant and Show Cause Notice in respect of which the present appeal is filed.
3. The ld. DR, on the other hand agrees that the issue can be remanded to the adjudicating authority in the light of the CESTAT judgement in case of Bhayana Builders (supra). He however objected to the ground that the service should be classified under works contract from 1.6.2007 in respect of ongoing contracts where the appellant paid service tax under Commercial or Industrial Construction Service after availing abatement as the said ground was not taken at the primary level.
4. We have considered the contentions of both sides. As regards the contention that certain period is overlapping in the periods covered by two Show Cause Notices dated 19.6.2008 and 15.12.2008, it is to be noted that mere overlapping of certain period is no evidence that the service tax has been demand on the same transactions. Therefore it will be open for the appellant to take this plea during de novo adjudication to show that there is overlapping of transactions inasmuch as certain transactions have been included in both the show cause notices for charging of service tax. As regards, its plea that in respect of ongoing contracts under which service tax was paid under CICS after claiming 67% abatement, the classification should have been changed to Works Contract Service with effect from 1.6.207, we note this plea was not taken at the primary level and therefore as rightly pointed out by ld. DR, we are not giving any view thereon. We however clarify that any legal plea can be raised at the time of de novo adjudication. We agree with both sides that this issue is to be remanded to the primary adjudicating authority for de novo adjudication in the light, and following the ratio of the CESTAT judgement in the case of Bhayana Builders (supra). Accordingly, we remand the case to the primary adjudicating authority for de novo adjudication taking into account the ratio, of the judgement in the case of M/s Bhyana Builders (supra) after giving the appellant an opportunity of being heard.
(R.K. Singh)
Member (Technical)
(Sulekha Beevi C.S.)
Member (Judicial)
RM
1
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