Sriroz Consultants Pvt. Ltd. Vs Commissioner of CGST & CE (CESTAT Mumbai)
CESTAT Mumbai held that for the same period excise duty is demanding alleging that activities undertaken by the appellants do amount to manufacture of Prefabricated building i.e. Green House and also service tax on activity of erection and commission of Greenhouse and Polyhouse at site. Accordingly, held that to ascertain the position, it is prudent to remand the matter to the adjudicating authority.
Facts- Appellant is engaged in the activity of sale of green house material and construction of greenhouses as per the requirement of the farmers/customers. Revenue was of the view that ‘greenhouses’ are put up as elements to be assembled on site, and appellant was manufacturer of greenhouses where they supply the raw material and carry out erection/ installation also.
Appellants are therefore required to pay Central Excise duty on the manufacture & clearance of their finished goods with effect from 28.02.2005.
Despite the fact that the appellant was engaged in manufacture of ‘Green House’, they failed to get themselves registered under Section 6 of the Central Excise Act, 1944 read with Rule 9 of the Central Excise Rules, 2002 and continued clearing ‘Green House without following procedures prescribed under ‘the Act’ and ‘the Rules’.
Appeal filed before Commissioner (Appeal) was dismissed. Being aggrieved, the present appeal is preferred.
Conclusion- Held that apparent that the claims of the appellants that they are just purchasing materials and selling the same & that they merely collect bought out duty paid items and supply them is not correct in as much as these goods are thereafter assembled and installed at the customer site by the appellant to bring into existence the “greenhouse”.
The issue whether the activities undertaken by the appellants do amount to manufacture of Prefabricated building – Green House or not is a question of fact and needs to be ascertained from the facts available on the records. In the paper book filed along with the appeal, appellants have enclosed a number of purchase order and invoices which were in reference to the supply of raw material, and the material. In fact there are no purchase orders/ invoices for the supply of Green House. No clear cut findings have been rendered by any authority on this aspect. Further whether appellants are paying service tax in respect of the erection and commissioning activities undertaken at the site, is also not very clear. Joint commissioner has in his order referred above has recorded the factum of issuance of notice demanding service tax and its adjudication. But do not records anything further. All these facts need to be ascertained and final view needs to be taken in the matter for ascertaining whether the activities undertaken by the appellant amounted to manufacture of prefabricated building – green house.
We find that separate show cause notices were issued to the appellant, for the same period, demanding service tax on the activity of erection and commissioning of Greenhouse and Polyhouse at site and the same was confirmed on adjudication. The appellant has admitted and service tax discharged along with interest on the said activity of erection and commissioning of Greenhouse/Polyhouse at site. From the records it is not clear whether the service tax was paid on separate activities or it is a part of assembling of Greenhouse/ Polyhouse at site out of the fabricated item cleared from their factory. To ascertain the aforesaid position, thus it is prudent to remand the matter to the adjudicating authority.
FULL TEXT OF THE CESTAT MUMBAI ORDER
These are two appeal filed by the appellant are against orders as indicated in the table below:
