Thyssenkrupp Elevator (I) Pvt. Ltd vs Commissioner Of Service Tax, Mumbai-Ii

(Arising out of Order-in-Original No. 83/ST-II/RS/2013 dated 20-12-2013 passed by Commissioner of Service Tax, Mumbai-II)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

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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?

====================================================== Thyssenkrupp Elevator (I) Pvt. Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai-II Respondent

Appearance: Shri Chirag vejani,C.A. for Appellant Shri V.K. Singh, SP.-Counsel, for Respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 22/09/2015 Date of Decision : 22/09/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Original No. 83/ST-II/RS/2013 dated 20-12-2013.

2. Heard both sides and perused the records.

3. On perusal of records, we find that the issue involved in this case is regarding the service tax liability on the appellant during the period 01-04-2008 to 31-03-2013 under the category of Works Contract Services. The appellant herein had entered into various contract for designing, supplying, erection, commission, installation of lifts at customers premises. Appellant had entered into a contract which indicated an amount payable for the lift and the amount charged by the appellant for installation and commissioning services. Appellant discharged the service tax liability on the amount collected as service charges, under the category of Erection, Commissioning and Installation Services. Revenue authorities are of the view that the appellant has to discharge the tax liability under Works Contract Services by including the cost of the lift and to such a conclusion, Revenue relied upon the contract entered by the appellant with their customers and held that such a contract is a work contract. It is the ground of the appellant that the adjudicating authority has not considered a very important aspect of the case in as much that, in Works Contract Services there is a provision for deduction of the value of the materials. It is also grounds that the adjudicating authority had not extended the benefit of notification no. 12/2003-ST.

4. On considering the detailed submissions made of by both sides, we find that instead of going into the merits of the case, in our considered view, the issue needs reconsideration by the adjudicating authority. We find that it is the claim of the appellant that had charged separately for the lift and its part and separately for erection and commissioning of the said lift. On causal perusal of the documents produce before us, we do find it so. We find from the impugned order that the adjudicating authority has recorded that the appellant did not produce the evidence/document as to the cost of the lift and the service charges. In our view the cost of the lift can be considered benefit of notification no. 12/2013-ST needs to be extended to the appellant. We find that this view has been held by the Tribunal in the case of Steindler (I) P. Ltd.-2014-VIL-183-CESTAT-Mum-ST and matter was remanded back to the adjudicating authority. We find that in the case is in hand, the issue needs reconsideration by the adjudicating authority, after taking into consideration evidences which appellant may produce on to that they charge their customers cost of the lift separately and cost of the services separately. Accordingly, without expressing any opinion of the merits of the case, keeping all the issues open, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh and passed an order after following the principles of natural justice.

5. Appeal allowed by way of remand.

(Operative portion of the order pronounced in court on completion of the hearing of case).

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

akp 1 4 APPEAL No.ST/86072/14-Mum