Srinivasan Associates Private Ltd vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No. ST/S/40538/2014 & ST/40360/2014

[Arising out of Order-in-Original No.12/2013-Commissioner dt. 26.11.2013 passed by the Commissioner of Central Excise, Coimbatore]

Srinivasan Associates Private Ltd. Appellant

Versus

Commissioner of Central Excise, Coimbatore Respondent

Appearance:

Shri P. Mahalingam, Advocate For the Appellant

Shri M. Ramohan Rao, DC (AR) For the Respondent

CORAM :

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing/Decision : 25.02.2015

FINAL ORDER No.40209/2015

Per D.N. Panda

Ld. counsel very fairly submits that there is no dispute on the classification of the service provided. If the Tribunal comes to a conclusion that gross value of the contract receipt is reduced by the value of the goods used in the contract which is verifiable and substantiated by evidence, the actual value of taxable service shall be worked out rationally. Such value shall only be exigible to service tax at the appropriate rate prevailing during material period. He also fairly submits that there is no claim of composition scheme to govern the appellant. It is governed by the normal scheme of the levy. Appellant relied on Tribunal's decision in the case of GMK Concrete Mixing Pvt. Ltd. Vs CST Delhi  2012-TIOL-137-CESTAT-DEL which has been upheld by apex court in Civil No.D.No.37837/2014 disposed on 6.1.2015 to submit that Finance Act, 1994 is not commodity taxation law.

2. Revenue submits that because no evidence of use of the materials were submitted by the appellant to the adjudicating authority, he has passed appropriate order on the basis of materials borne by record. Therefore, there may not be any dispensation in predeposit.

3. While the appellant's submission is as above, and the law relating to taxation of service by Finance Act, 1994 is not commodity taxation law, it would be proper to give an opportunity to the appellant to adduce necessary evidence supporting its claim on the value of the goods used in execution of the works contract. If the authority is satisfied as to the value of use of the goods in the work as pleaded by learned counsel to be substantiated by evidence, the gross value of the contract shall get reduced by the proved value of the goods. The residue shall only be liable to service tax at the appropriate rate prevailed during the relevant period.

4. It is made clear to both sides that the classification shall not be in dispute before the adjudicating authority in denovo adjudication nor any plea on composition scheme shall be entertainable.

5. Appellant is directed to make an application to the adjudicating authority within 60 days of receipt of this order along with evidence to be relied upon praying for fixation of date of hearing. On the date fixed, it shall appear before him and explain its case without seeking adjournment. Since the demand raised in adjudication is running to crores of rupees, after affording reasonable opportunity of hearing to the appellant, the authority shall pass appropriate order.

6. In view of the order above, stay application is disposed and the appeal is remanded to learned adjudicating authority with the above said direction to redo the adjudication.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

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