New Datta Builders vs Cce Kolhapur

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

COURT No. I

Appeal No.ST/11 & 12/10

(Arising out of Order-in-Appeal No. PII/PAP/205/2009 dated 23.09.2009 passed by Commissioner of Central Excise (Appeals), Pune II)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, 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?

New Datta Builders Appellant Vs.

CCE Kolhapur Respondent

Appearance:

Shri V.B. Gaikwad, Advocate for appellant Shri R.K. Das, Deputy Commissioner (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of Hearing: 09.04.2015 Date of Decision: 09.04.2015

ORDER NO Per: M.V. Ravindran This appeal is directed against order in appeal number PII/PAP/205/2009 dated 23 September 2009.

2. Heard both sides and perused the records.

3. On perusal of the records it transpires that the issue involved in this appeal is regarding the service tax liability on the appellant under the category of Commercial or Industrial Construction Services.

4. Learned Advocate would take us to the order-in-appeal and submit that the first appellate authority has recorded that the appellant had not produced evidences supporting the claim of taxable services asbeing already discharged of service tax. He would take us to the chart which was prepared by him and explain that the tax liability is not properly appreciated by the lower authorities. It is his prayer that they are in a position to produce evidences which may reduce the tax liability on the appellant hence matter may be remanded back to the adjudicating authority.

5. Learned Departmental Representative on the other hand would draw our attention to the findings recorded by the first appellate authority and submit that appellant had not produced the evidences in support of his claim.

6. We find that the appellant had in his submission before the lower authorities has taken the ground of non-taxability as the entire work of construction was completed before 10/9/2004; that the work for which payment was issued was completed prior to the taxability of the services; work relates to construction of residential units hence cannot be treated as commercial or industrial construction work; part of the work was outsourced on back-to-back contracts; the main contractor Mrs Thermax Ltd. has discharged the entire service tax liability and had also stated that they will be able to produce all the evidences now before the lower authorities. On scrutiny of the impugned order before us we notice that the first appellate authority has recorded that the appellant had not produced any evidences substantiating the claim as to the services were rendered prior to the tax being levied on the commercial and industrial construction services. A casual perusal of the evidences produced before us indicates prima facie the services were provided before they came into service tax net. In our considered view, the entire issue needs deeper consideration by appreciating the factual matrix by the adjudicating authority. As the adjudicating authority was deprived of an opportunity to appreciate the evidences he should be given an opportunity to do so and come to a conclusion.

7. In view of the foregoing, we set aside the impugned order, keeping all the issues open, remand the matter back to the adjudicating authority to reconsider the issue afresh after following the principles of natural Justice. Appeal allowed by way of remand (Order ronounced in Court)

(P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial)

nsk

??

??

??

??

1 4