Phoenix Engineering vs Commissioner Of Central Excise

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

COURT No. I

APPEAL No.ST/154/10

(Arising out of Order-in-Original No.07/2009/ST/C dated 28/12/2009 passed by Commissioner of Central Excise & Customs, Nagpur)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. 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 :Yes 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? ========================================

Phoenix Engineering Appellant Vs. Commissioner of Central Excise, Respondent Nagpur

Appearance: Shri.G.L. Deshpande, Advocate for appellant Shri.D.Nagvenkar, Addl. Comm. (AR), for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical)

Date of Hearing : 06/02/2015 Date of Decision : 06/02/2015

ORDER NO

Per: P.R. Chandrasekharan

1. The appeal is directed against Order-in-Original No.07/2009/ST/C dated 28/12/2009 passed by Commissioner of Central Excise & Customs, Nagpur.

2. Vide the impugned order, the learned adjudicating authority has confirmed a service tax demand of Rs.67,79,026/- along with interest thereon and also imposed penalties under Sections 76, 77 & 78 of the Finance Act,1994 by classifying the services undertaken by the appellant under the category of commercial or industrial construction services. Aggrieved of the same, the appellant M/s.Phoenix Engineering is before us.

3. The learned Counsel for the appellant submits that service tax demand which has been confirmed against the appellant pertains to the services rendered by them to M/s.Maharashtra State Road Development Corporation Ltd., (MSRDC), Public Works Department of Government of Maharashtra, Nagpur Municipal Corporation and Irrigation Department of State of Maharashtra (IDSM). Bulk of these works pertains to construction/maintenance of roads, construction of toll sheds and providing electrification of High Mast Poles at the toll sheds, construction of bridges over nallas, civil works in respect of canals, etc. As far as the construction and repair of roads are concerned, these activities have been retrospectively exempted from the levy of service tax. Similarly, the activities of civil construction undertaken in respect of irrigation scheme falls outside the purview of the taxation as they have been specifically excluded from the commercial construction services. It is, therefore, his plea that the entire demand is not sustainable. He has also produced before us the details and copies of the work orders given by the various agencies for the works executed by the appellant. Accordingly, he pleads for setting aside the impugned demands and allowing the appeal.

4. The learned Additional Commissioner (AR) appearing for the Revenue reiterating the findings of the adjudicating authority and contended that the appellant did not produce documentary evidences in support of his claim that the work order executed pertain to construction/repairs/maintenance of roads or civil work in relation to the irrigation of dams and therefore, findings of the adjudicating authority cannot be disputed.

5. We have carefully considered the rival submissions.

5.1 Both from the show-cause notice as well as the impugned order, especially para 48 & 49, it is evident that the activity undertaken by the appellant pertain to widening/construction/maintenance of roads, construction of toll plaza and sheds including high mast poles, construction of bridges, etc. Therefore, there was enough material available before the adjudicating authority to verify the exact nature of work undertaken and to see whether the same was taxable or not. We have perused the work orders submitted by the appellant and find that all these work orders pertain to construction/repairs/maintenance of roads, construction of toll sheds/plaza located in the road, civil works relating to irrigation dams and so on. All these activities have been retrospectively exempted either by way of Notification or by means of a specific provision in the Finance Act itself and therefore, the activities undertaken by the appellant is either exempted or falls outside the purview of the taxable services. Therefore, the impugned demands are clearly not sustainable in law and have to be set aside. Accordingly, we set aside the impugned order and allow the appeal.

(Operative part of the order pronounced in Court)

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

pj

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