M/S. Subir Engineering Works vs Commissioner Of Central Excise & ...

(Arising out of the order in Appeal No.35/Commr./ST/BOL/13 dated 12.11.2013 passed by the Commissioner of Central Excise & Service Tax Bolpur.

FOR APPROVAL AND SIGNATURES OF

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, 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. Subir Engineering Works APPLICANT(S) VERSUS Commissioner of Central Excise & Service Tax, Bolpur ...RESPONDENT (S)

APPEARANCE:

SHRI S.P.SIDDHANTA, CONSULTANT FOR THE APPELLANT SHRI K.CHOWDHURY, SUPDT.(AR) for the Respondent

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

Date of Hearing: 30.09.15 Date of Decision: 30.09.15

ORDER NO. FO/A/75603/15

Per Shri H.K.Thakur

This stay application and appeal has been directed by appellant against OIO No. 35 /Commissioner/ST/BOL/13 dt 12/11/13 and corrigendum dt 19/12/2013 passed by Commissioner of Central Excise & Service Tax, Bolpur. Adjudicating authority under the above orders has confirmed a Service tax demand of Rs. 61,64,812/- alongwith interest the against appellant and has also imposed penalties under Sec. 76 & 78 of the finance Act 1994 upon the appellant.

Shri S.P Siddhanta (Consultant) appearing on behalf of the appellant argued that appellant is providing construction services falling under Sec 65 (25b) and 65 (105) (zzq) of the Finance Act 1994. That appellant during the period 2007-08 to 2011-12, interalia, provided construction Services to National School of Hotel Management Academy (NSHM) and Hari Charan Garg Charitable Trust ( HCGC). That during adjudication proceedings appellant had also produced requisite certificate from the concerned authorities to the effect that both NSHM & GCGC are either educational or charitable institutions and not liable to pay Services tax in view of CBEC Circular No B2/08/2004-TRU dt 10/-9/2004. That appellant could not produce requisite certificate from the income tax authority before the adjudicating authority to the effect that HCGC is a charitable institution entitled to exemption as per CBEC Circular dt 10/09/2004. That appellant was never asked to produce any ground plan as per Para- 13.2 of this Circular dt 10/09/2004. Learned consultant there argued that matter way be remanded to the adjudicating authority for denovo considerations.

K. Choudhari Supdt (AR) appearing on behalf of the Revenue argued that appellant has not substantiated his case before the adjudicating authority and has thus caused delay. Learned AR Strongly defended the order passed by the Adjudicating authority.

Heard both sides & perused the case records. The issue involved in these proceedings is whether appellant has undertaken construction work for Educational / charitable Institutions & whether they are eligible to exemption in view of CBEC Circular No. B2/08/2004-TRU dt 10/09/2004. Para- 13.2 of this circular is as follows.

13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generallyused, or to be used for commerce or industry. The information about this has to be gathered from, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax.

4.1. It is the case of the appellant that now they are in possession of requisite certificates with respect to charitable nature of HCGC also. It is also appellants case that they can also furnish ground plans / documents to the Adjudicating to establish that both NSHM & HCGC are non commercial organizations. It the interest of justice we remand the matter back to the Adjudicating authority to decide the case afresh in denovo adjudications. Appellant shall furnish all the documentary evidences before the adjudicating authority to substantiate their claim that NSHM & HCGC are educational / charitable institutions and are not used for commerce or industry as per para- 13.2 of CBEC Circular dt 10/09/2004. However, we also observe that period of demand is 2007-08 to 2011-12 and appellant did not produce all the requisite documents before the Adjudicating authority at the appropriate time Appellant is thus required to be put to some conditions in order to make their effective presentation before the Adjudicating authority to decide the case early. Accordingly, it is ordered that appellant shall pre deposit an amount of Rs. 4.6 lakh within eight weeks and report compliance to the Adjudicating authority Upon submitting the evidence of pre-deposit of above amount adjudicating authority will decide the case in remand proceedings after extending an opportunity of personal hearing to the appellant. Needless to say that this bench has not expressed any opinion on the merits of the case and all the issues have been kept open for the Adjudicating authority to deliberate

3. Appeal filed by the appellant is allowed by way of remand. Stay petition filed by the appellant also stands disposed of.

(Operative part of the order was pronounced in the court.)

(D.M.MISRA) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER

Tushar kumar

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