CESTAT, BANGALORE BENCH
ABAK Constructions
versus
Commissioner of Central Excise, Customs & Service Tax, Tirupati
STAY ORDER NOS. 86-87 OF 2012
APPLICATION NOS. ST/STAY/716-717 OF 2010
APPEAL NOS. ST/1257-1258 OF 2010
JANUARY 18, 2012
ORDER
P.G. Chacko, Judicial Member – These applications seek waiver of pre- deposit and stay of recovery in respect of service tax of over Rs. 1.17 crores (education cess included) demanded for the period from October 2003 to September 2008 covered by show-cause notice dated 21-4-2009 as also in respect of the penalties imposed on the appellant. After a perusal of the records and hearing both sides, we note that the impugned demand is not under any specific head of taxable service. The learned Commissioner has confirmed the demand against the assessee under 4 heads viz. (i) Management, Maintenance or Repair Service (ii) Manpower Recruitment or Supply Service (iii) Erection, Commissioning and Installation Service and (iv) Business Auxiliary Service (BAS) without providing item-wise breakup of the gross taxable value. We further note that the appellant paid an amount of Rs. 37 lakhs during the course of investigations and the same stands appropriated. The learned counsel for the appellant submits that a further amount of Rs. 15,96,635/- has also been paid by the assessee though the same is not reflected in the impugned order. Adverting to the merits of the demand, the learned counsel submits that a major part of the demand is based on the finding that the appellant is not entitled to claim the benefit of Notification No. 8/2005-S.T., dated 1-3-2005. In this connection, it is submitted that the appellant was fabricating various items like ducts for M/s. Ultratech Cements Ltd. who were to use the said items in or in relation to the manufacture of their excisable products. It is submitted that, on these facts, the appellant could claim the benefit of the above notification. It is pointed out that the benefit was denied on the ground that the ducts and other items fabricated by the appellant were not excisable goods covered by the First Schedule to the Central Excise Tariff Act. It is the further submission of the learned counsel that the entire demand is revenue-neutral inasmuch as any amount of service tax paid by the appellant will be available as CENVAT credit to the service recipient. Learned counsel has also pleaded time bar against a major part of the demand of service tax. According to him, only an amount of Rs. 18 lakhs (approx.) is coming within the normal period of limitation.
2. We have heard the learned Deputy Commissioner (AR) also who has reiterated the relevant finding of the Commissioner.
