Metal Craft Enterprises vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/524/11

(Arising out of Order-in-Appeal No. US/15/RGD/2011 dated 08.06.2011 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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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?

Metal Craft Enterprises Appellant Vs.

Commissioner of Central Excise Raigad Respondent

Appearance:

Shri S.P. Agnihotri, Consultant for appellant Shri S.R. Nair, E.O. (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 02.09.2015 Date of Decision: 02.09.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against order-in-appeal No. US/15/RGD/2011 dated 08.06.2011.

2. Heard both sides and perused the records.

3. The issue involved in this appeal is regarding the service tax liability on the appellant under the category of Maintenance and Repair service as provided under Section 65(64) of the Finance Act, 1994.

4. The adjudicating authority has held that the appellants activity of supplying scaffolding on rental basis would amount to rendering of services under Maintenance and Repair Service. On an appeal, the first appellate authority has allowed the appeal holding that for the period 2004-05 to 15.05.08 the activity of supplying scaffold will not fall under the category of maintenance or repair service and coming to such conclusion he dropped the demands confirmed by the adjudicating authority. Revenue is not in appeal against setting aside the demands of interest thereof and the penalties by the first appellate authorities. The first appellate authority vide impugned order has confirmed the demands of service tax and interest thereof from 16.05.2008 to 31.3.2009 under the category of Supply of Tangible Goods service for the same activity under Section 65(105) (zzzzj) for the Finance Act, 1994.

5. We find strong force in the contentions raised by the learned Consultant that the show-cause notice and the order-in-original proceeded for confirmation of demands from the appellant on the ground that they have rendered services of maintenance or repair for the period 16.05.2008 to 31.03.2009. There was no proposal for clarification of the services rendered by the appellant under the category of supply of tangible goods. In our considered view the first appellate authority has gone beyond the allegations made in the show-cause notice by upholding the demand under the category of supply of tangible goods service. It is a settled law that the appellate authority gone beyond the allegation made in the show-cause notice. In our view, the impugned order to that extent it confirms the service tax liability from 16.5.2008 under the category of supply of tangible goods service is unsustainable as being beyond the allegation made in the show-cause notice. The appeal to that extent as filed by the assessee is allowed and the impugned order to that extent which is challenged before us is set aside.

6. Appeal is disposed of as indicated herein above.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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1 4 Appeal No. ST/524/11