Mankeshwar Enterprises vs Cce Pune I

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II

APPEAL NO. ST/109/12  Mum

Arising out of Order-in-Original No. P-1/COMMR/ST/32/2011 dated 09.12.2011 passed by the Commissioner of Central Excise, Pune I

For approval and signature:

Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

Mankeshwar Enterprises : Appellant

Versus

CCE Pune I

Respondent

Appearance

Shri Vipin Kumar Jain, Advocate for appellant Shri K.S. Mishra, Addl. Commissioner (A.R.) For Respondent

CORAM:

Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 11.03.2015 Date of Decision : 11.03.2015

ORDER NO.

Per : M.V. Ravindran This appeal is directed against order in original number PI/COMMR/ST/32/2011 dated 09/12/2011.

2. The relevant facts that arise for consideration are appellant herein is alleged to have provided services falling under the category of manpower recruitment or supply agency services and did not discharge the service tax liability for the amounts received in the year 2005  06, 2006  07 and 2007  08. After recording the statement of husband of proprietoress of the appellant, revenue authorities issued a show cause notice proposing to demand an amount as service tax liability along with interest and proposing to impose penalties. In response to the show cause notice appellant filed a reply contesting the issue on merits. The adjudicating authority in the impugned order records that the appellant did not avail the opportunity of personal hearing granted to him hence decided the matter against the assessee ex-parte. The impugned order confirmed the demands of service tax liability along with interest and imposed penalty.

3. Heard both sides and perused the records.

4. Learned Counsel appearing on behalf of the appellant would submit that the impugned order has been passed in violation of principles of natural Justice inasmuch as an effective to personal hearing is not granted to the appellant. He would draw our attention to a letter dated 26/09/2011 and submit that they had sought an adjournment. He would also submit that the adjudicating authority has held against the appellant on the ground that appellant had themselves in a letter admitted that they providing man power recruitment and supply agency services. It is his submission that in fact appellant is undertaking services of cleaning of the hospital premises; to support the submissions he takes us through the statement recorded of the husband of the proprietress and also the agreement entered by appellant with the service recipient. He would draw our attention to the scope of work as per the agreement and submit that the entire work is of cleaning services. He would submit that the mere letter of an assessee may not be the deciding factor and agreement needs to be gone into for arriving at the correct conclusion as to the classification of the services rendered by the appellant is the ratio of the judgement in the case of some of Sadbhavi Samarth Trust - 2014 (36) STR 83. He would also submit that the ratio of the judgement in the case of Harsh constructions private Limited  2014 (35) STR 617 will apply in this case as the ratio that construction of colleges, hospitals or open University being non commercial or industrial in nature taxability on such services is not contemplated. He would request that the matter be remanded back to the adjudicating authority to reconsider the issue afresh.

5. Learner departmental representative would reiterates the findings recorded by the adjudicating authority.

6. We have considered the submissions made at length by both sides and perused the records. We find that the grievance of learned Counsel of the appellant as to they were not given an effective to personal hearing seems to be correct. We find that the adjudicating authority has confirmed substantial amount as service tax liability without affording another opportunity to the appellant for defending the case personally. In our view, the impugned order is passed in violation of principles of natural Justice.

7. Accordingly, we are constrained to set aside the impugned order and remit the matter back to the adjudicating authority to reconsider the issue afresh. We record that we have not made any observations on the merits of the case, all the issues are kept open for the adjudicating authority to arrive at a conclusion after following the principles of natural Justice. We direct the appellant to co-operate with the adjudicating authority and appear before him as and when they are called for personal hearing.

8. The impugned order is set aside and the matter is remanded back to the adjudicating authority for reconsideration.

(Dictated in open Court)

(P.R. Chandrasekharan) Member (Technical)

(M.V. Ravindran) Member (Judicial) nsk

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