Case Law Details
Aneri Constructions Vs CCE (Cestat Ahmedabad)- After going thorough the impugned order and considering the submissions made by the learned advocate, we find that as rightly submitted by the learned advocate following aspects have not been considered in detail :-
(a) The liability of contractor or Sub-contractor and relationship of the appellant with M/s. Tata Honeywell Limited; the claim that the contract was for construction of roads; the claim of fabrication not amounting to manufacture in view of the fact that it was labor work done and not fabrication in factory and therefore, exemption under Notification No. 67/95-ST was available and the case law relied upon for the same; the claim for treatment of amount received as cum-service tax; the claim of bonafide belief based on the decision of the Tribunal in the case of Indian Hume Pipes;
In these circumstances, we consider it appropriate that the matter is to be remanded to original adjudicating authority for fresh decision after giving a reasonable opportunity to the appellants to present their case. Accordingly, the matter is remanded to Commissioner for fresh decision without expressing our opinion on any of the issues.
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, AHMEDABAD
Appeal No. ST/158 of 2007
Arising out of Order-in-Original No.02/Service Tax/2007 Dated: 23.8.2007
Date of Decision: 26.08.2010
M/s. ANERI CONSTRUCTIONS
Vs
COMMISSIONER OF CENTRAL EXCISE , SURAT
ORDER NO. A/1749/WZB/AHD/2010
Per: B S V Murthy:
M/s. Aneri Constructions (Aneri for short) is a proprietorship firm engaged primarily in construction of gas pipe lines and other related activities like repair, alteration, renovation and restoration of existing pipelines for various companies like M/s. Gujarat Gas Company Limited, M/s. GSPC, M/s. Niko Resources Limited, M/s. Gujarat Adani Energy Limited, M/s. Essar Construction Limited, M/s. GAIL etc. They were also engaged in the installation and commissioning of gas plant maintenance and repair of such plants. On the ground that activities of the appellants are covered and are liable to service tax under the categories of Maintenance and Repair Services, Manpower Recruitment, Erection, Commissioning or Installation Services and Construction services, investigation was taken up on finding that appellant had not paid any service tax till 28.10.2005, even though they had registered themselves during the month of April, May and October 2005. After a detailed examination and analysis of the activities carried out by the appellants and scrutiny of books of accounts etc. proceedings were started which culminated in confirmation of demand for service tax of Rs. 1,20,64,830/-with interest as applicable. Further, penalty has also been imposed under Section 76 and 78 of the Finance Act, 1994.
2. Learned advocate Shri S. Suriyanarayanan, on behalf of the appellants submitted that matter is to be remanded to the original adjudicating authority in view of the fact that several submissions made by him have not been properly considered. The first submission in this regard is that, appellant were not rendering only one service but different services, whereas the Commissioner has dealt the activities under one category of service. The show cause notice had proposed demand of service tax under different categories, Erection, Commissioning and Installation services, Maintenance and repair services and Construction services. Further, he also submits that the definition of Erection, Commissioning and Construction services have undergone some change in 2006 and these changes have also not been taken into account. He submits that submissions made by the appellants that they were only sub contractors and M/s. Tata Honeywell Limited is the main contractor, has been rejected on the ground that the transaction between the Contractor and the Sub-contractor was on principal to principal basis. The claim was made on the ground that on some services service tax cannot be collected from the two persons namely Contractor and Sub-contractor. Further, he also submits that reply was only an interim reply and this is proved by the fact that Commissioner has in one place said that copy of the full contract has not been submitted. It was only an interim reply and if the Commissioner had given time, appellant would have submitted all the documents. Further, he also submits that fabrication did not amount to manufacture and hence not covered by construction service. This aspect has been totally ignored by the Commissioner on the ground that said fabrication is rendered in or in relation to the construction services. He submits that their submission that fabrication was in the form of labor work done for the manufacturers and when it did not amount to manufacture, the benefit of exemption under Notification No. 67/95 stands rejected without proper consideration. In this connection, he submitted that the decision of the Tribunal in the case of Neo Structo Engineering – 2010 (27) STT 01 is relevant and he fairly admits that this decision was not placed before the Commissioner. He submits that the Tribunal had considered the Larger Bench decision of the Tribunal in the case of Mahindra & Mahindra Limited 2005 ((190) ELT 301 before coming to the conclusion that when fabrication does not amount to manufacture, service tax is not leviable. Further, he also submits that the claim for exemption is on the ground that the contract was for construction of roads had been denied on the ground that contract was not produced. He submits that they would have produced the contract but did not get opportunity. Further, he also submits that several claims made by them for abatement have been rejected without sufficient ground. Further, he relies upon the decision of the Tribunal in the case of Indian Hume Pipe Company Limited vs. Commissioner of Central Excise, Trichy – 2008 (12) STR 363 (Tri. Chennai) to support his contention that claim for bonafide belief on the part of appellants is based on this decision and therefore, extended period could not have been invoked.
3. After going thorough the impugned order and considering the submissions made by the learned advocate, we find that as rightly submitted by the learned advocate following aspects have not been considered in detail :-
(a) The liability of contractor or Sub-contractor and relationship of the appellant with M/s. Tata Honeywell Limited; the claim that the contract was for construction of roads; the claim of fabrication not amounting to manufacture in view of the fact that it was labor work done and not fabrication in factory and therefore, exemption under Notification No. 67/95-ST was available and the case law relied upon for the same; the claim for treatment of amount received as cum-service tax; the claim of bonafide belief based on the decision of the Tribunal in the case of Indian Hume Pipes;
4. In these circumstances, we consider it appropriate that the matter is to be remanded to original adjudicating authority for fresh decision after giving a reasonable opportunity to the appellants to present their case. Accordingly, the matter is remanded to Commissioner for fresh decision without expressing our opinion on any of the issues.
(Pronounced in the Court)
