S. Chand Basha vs Commissioner Of Central ...
- CitationAppeal No 46-2009
Ratio decidendi
The rule this decision rests on
Where a party seeks to have a supply of services classified under works contract rather than manpower supply, the party bears the onus of producing evidence that its payment was computed by reference to the actual work performed rather than by reference to the manpower supplied, and absent such evidence the classification claim fails and the service tax demand, with interest, stands. Where the assessee establishes no basis for disputing the demand, the penalty may be waived under the power conferred by Section 80 of the Finance Act, 1994, having regard to the period and amount involved and the nature of the assessee as a small contractor, provided the entire tax and interest are deposited.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No 46-2009 dated 31/12/2010 passed by CCE(Appeals), Guntur ]
For approval and signature:
HON'BLE Shri 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?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
S. CHAND BASHA I.O.C. CONTRACTOR, 17/281, HUNDEKARSTREET, GUNTAKAL P.O. ANANTHAPUR DIST, AP Appellant(s)
Versus
Commissioner of Central Excise,Customs & Service Tax TIRUPATI NULL 9/86-A...BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI, - 517502 AP Respondent(s)
Appearance:
None For the Appellant
Dr. A.K. Nigam, Addl. Commissioner(AR) For the Respondent
Date of Hearing: 30/01/2015
Date of Decision: 30/01/2015
CORAM:
HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20372 / 2015
Per : B.S.V. MURTHY
Nobody is present on behalf of the appellant. However written submissions have been received.
2. Heard the learned AR.
3. On the ground that appellant was rendering taxable services and supply of manpower during the period from 16/06/2005 to 30/09/2007 to M/s. IOCL, proceedings were initiated culminating in confirmation of demand for service tax of about Rs.1,67,000/- with interest and penalties under various sections of Finance Act, 1994.
4. In the grounds of appeal, the appellant submitted that the service rendered by him should have been classified under works contract and not under manpower supply. The manpower supplied by him had worked directly under the control of IOCL and therefore the appellant is not liable to pay service tax under manpower supply service category. However no evidence has been produced to show that payment was made not in terms of manpower supplied but in terms of actual work performed. It is also noticed that at no stage in the proceedings such evidences have been produced. Under the circumstances, the demand for service tax and interest has to be upheld. As regards penalty, it has been pleaded that appellant is a small contractor and even at the stay stage, such facts were taken note of and a small amount was required to be deposited. Having regard to the period involved, amount involved and nature of the appellants, it is considered that if appellant deposits the entire amount of service tax and interest that would be sufficient. In the result, the demand for service tax and interest are upheld and penalties imposed on the appellant are waived by invoking the provisions of Section 80 of Finance Act, 1994. The appeal is disposed of in above terms.
(Operative portion of this order pronounced in the court)
B.S.V.MURTHY TECHNICAL MEMBER
Raja 2
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