Prakruti Creations vs Commissioner Of Service Tax ...
- CitationAppeal No. 662/2013 dated 12/11/2013 passed by the Commissioner of Central Excise,
Ratio decidendi
The rule this decision rests on
The Tribunal's decision on the pre-deposit requirement rests on the principle that where the appellant has deposited a sum which, in the Tribunal's opinion, is sufficient having regard to the prima facie merits raised, the requirement of further pre-deposit may be waived and the appeal taken up for final decision. Where the activity in dispute is the execution of works and not the provision of design or consultancy advice, an appellant that prima facie falls outside the definition of Interior Decorator Service has a prima facie case on merits, and such a case justifies waiving the balance of the pre-deposit. Where the Tribunal finds that the impugned orders were passed without a proper hearing on the disputed issues, including the valuation of the taxable service, the orders may be set aside and the matter remanded to the adjudicating authority for fresh decision after affording the appellant a reasonable opportunity to present its case.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ST/Stay/20759/2014, ST/Stay/20760/2014 in ST/20718/2014-DB, ST/20719/2014-DB
Appeal(s) Involved:
ST/20718/2014-DB, ST/20719/2014-DB
[Arising out of Order-In-Appeal No. 662/2013 dated 12/11/2013 passed by the Commissioner of Central Excise, (Appeals-II) Bangalore] [Arising out of Order-In-Appeal No. 663/2013 dated 12/11/2013 passed by the Commissioner of Central Excise, (Appeals-II) Bangalore]
For approval and signature: HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, 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
Prakruti Creations No.25, Prashanth Extension, Whitefield Bangalore 560 066 Karnataka Appellant(s) External Works South Asia No.25, Prashanth Extension, Whitefield Bangalore 560 066 Karnataka Appellant(s) Versus Commissioner of Service Tax Bangalore-Service Tax 1st To 5th Floor, TTMC Building, Above BMTC Bus Stand, Domlur Bangalore 560 071, Karnataka Respondent(s)
Appearance:
Mr. N. Anand, Advocate Ravishankar & Chander Kumar, Advocates #504, 4th Floor, Oxford Towers, 139 Old Airport Road, Kodihalli, Bangalore 560 008 Karnataka For the Appellant
Mr. Mohd Yusuf, AR For the Respondent
Date of Hearing: 11/02/2015 Date of Decision: 11/02/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order Nos. 20305-20306 / 2015
Per: B.S.V. MURTHY
In both the appeals one of the issues involved is common and both the appeals have been rejected for failure to deposit the amount ordered by the learned Commissioner (Appeals). After hearing both the sides, we find that the appeals can be decided and accordingly we waive the requirement of pre-deposit and take up the appeals for final decision.
2. Learned counsel submits that both the appellants are engaged in work of landscaping of gardens and beautification of office space. He submits that both the appellants are engaged only in execution of the work and the actual design and consultancy services are provided by someone else and such designs finalized by the service receivers provided to them based on which they execute the work. He submits that the definition of Interior Decorator Service does not cover execution aspect and only advice, consultancy is covered and therefore the appellant is not liable to pay the tax. He relies on the decision of the Tribunal in the case of Spandrel vs. CCE, Hyderabad/Kochi [2010 (20) S.T.R. 129 (Tri.-Bang.)] to support this submission. As regards Management, Maintenance and Repair Service, he submits that only M/s. Prakruti Creations is engaged in providing the service and the services provided to immovable property was not liable to tax prior to 16.06.2005 and appellant is also disputing the valuation aspect since they are supplying bricks, cements, stones and other materials and they are paying VAT on the same. Therefore he submits that the valuation also requires a relook.
3. Taking note of the fact that M/s. Prakruti Creations has deposited an amount of Rs. 7,00,000/- (Rupees Seven Lakhs only) and in our opinion the same is sufficient in view of the submissions made above and considered by us and also taking note of the fact that prima facie Interior Decorator Service on which service tax has been levied would not be liable to tax, we consider that the amount already deposited by the appellant is sufficient to hear the appeal. Further in the case of M/s. External Works South Asia, the service involved is only Interior Decorator Service and on that service we have found that appellant has prima facie case on merits. In view of the above, the impugned orders are set aside and the matters are remanded to the learned Commissioner (Appeals) for fresh decision. Needless to say the appellant shall be given reasonable opportunity to present their case before taking a decision on merits.
(Order pronounced in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER
iss
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