Mr. T V Murali, Proprietor vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal21 September 2015

CitationAppeal No. 158 & 159/2013-S.T dated 27/08/2013 passed by Commissioner of Central Excise, Cu

Ratio decidendi

The rule this decision rests on

The tribunal's reasoning rests on two propositions. First, a works contract was not liable to service tax for the period prior to 1 June 2007, when that levy was introduced, as the Supreme Court's larger bench decision in Larsen and Toubro has settled that position; the appellant may rely on that law even though it was not before the Commissioner (Appeals). Second, where the department has issued a fresh show-cause notice invoking the extended period of limitation after an earlier notice, the limitation question is governed by the Supreme Court's decision in Nizam Sugar Factory, and must be decided in that light.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCHBANGALOREApplication(s) Involved:

ST/Stay/29063/2013, ST/Stay/29065/2013 in ST/28371/2013-DB, ST/28372/2013-DB

Appeal(s) Involved:

ST/28371/2013-DB, ST/28372/2013-DB

[Arising out of Order-in-Appeal No. 158 & 159/2013-S.T dated 27/08/2013 passed by Commissioner of Central Excise, Customs and Service Tax, COCHIN (Appeal).]

For approval and signature:

HON'BLE SHRI ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Mr. T V Murali, Proprietor Classic Constructions 29/561/1, Harwin Regency, Paliyam Road, THRISSUR - 680001 KERALA Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax Cochin- C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018 KERALA Respondent(s)

Appearance:

Mr. Thomas Kuriyan, Advocate MENON & PAI IS PRESS ROAD, COCHIN KOCHI - 682018 KERALA For the Appellant

Mr. N. Jagadish, Superintendent (AR) For the Respondent

Date of Hearing: 21/09/2015

Date of Decision: 21/09/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER

Final Order No. 21945-21946 / 2015

Per : ARCHANA WADHWA

The issue involved in both the appeals is as to whether the work contract can be held to be liable to service tax prior to 1.6.20007 when the same was introduced. Lot of water has flown on the said legal issue which ultimately stands decided by the Larger Bench decision of the Supreme Court in the case of CCE & C vs. Larsen and Toubro Ltd. & Ors.: 2015-TIOL-187-SC-ST. The benefit of the decision was not available before the Commissioner (A).

2. Though in one case the period involved is exclusively prior to 1.6.2007, the other appeal relates to period subsequent. However, it is the contention of the learned advocate that the same has invoked longer period of limitation and the show-cause notice was issued after the issuance of first show-cause notice in which case the law declared in the decision of Nizam Sugar Factory vs. CCE: 2008 (9) STR 314 (SC) would apply.

3. We have not gone through the details of the other pleas raised by the assessee but on this limited issue of the liability of works contract for the period prior to 1.6.2007, we deem it fit that the matter should go back to the Commissioner (A) for reconsideration in the light of the law declared by the Supreme Court. Similarly the point of limitation would also be decided by him in the light of Supreme Courts decision in the case of Nizam Sugar Factory (supra). Both stay petition as also the appeal gets disposed of in above manner.

(Order pronounced in open court)

ASHOK K ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

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