Anjani Excavation Operation Vs Commissioner of Central Excise & ST (CESTAT Ahmedabad)
CESTAT find that Adjudicating Authority has denied the classification of service under Works Contract solely on the basis that appellant have not produced any evidence to show that the appellant have been paying VAT/ Sales Tax on the execution of contract. Accordingly, it was construed that in the absence of any evidence of VAT payment, the classification under Works Contract was denied and consequently the demand of service tax was confirmed. From perusal of VAT Form 201 submitted before us, it is clear that the appellant have been paying VAT to the State Government in respect of works contract. However, the Adjudicating Authority (AA) has not considered the same in proper perspective. Therefore, we are of the view that the matter needs to be remitted back to the Adjudicating Authority for passing a fresh order considering all the evidences relating to VAT and on the basis of other documents if any required. All the issues are kept open. The impugned order is set-aside and the appeal is allowed by way of remand to the Adjudicating Authority.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved in the present case is whether the contract of construction executed by the appellant is classified under Works Contract service or otherwise.
2. Shri Nimish S. Desai, learned Counsel appearing on behalf of the appellant submits that the Adjudicating Authority has confirmed the demand of service tax denying the classification of Works Contract under composition scheme, on the ground that appellant have not produced any evidence regarding payment of Sales tax/ VAT to the State government on transfer of property relating to execution of the contract. He took us through various VAT Form 201 wherein he has pointed out that appellant have been paying the VAT on Works Contract to the State Government. He submits that on the basis of this VAT Form 201, it is clear that they have been paying VAT and accordingly, classification is under Works Contract and could not have been denied. He placed reliance on the following judgments:-
(a) Uniwell Exim vs. State of Gujarat – 2022 (63) GSTL 289 (Guj.)
(b) Stahl P. Limited vs. DGFT, New Delhi – 2021 (376) ELT 712 (Mad.)
(c) CST, Chennai vs. C-Dot Alcatel Lucent Research Centre (P) Limited – 2021 (48) GSTL 15 (Mad).
(d) CCE, Thane-I vs. Crescent Catalyst & Chemicals – 2017 (357) ELT 441 (Tri. Mum.)
(e) Commissioner of Customs, ICD, New Delhi vs. V.S.M. Impex Pvt. Limited – 2019 (370) E.L.T. 930 (Tri. – Chan.)
(f) CCE, Thane vs. Crescent Catalyst & Chemicals – 2017 (357) E.L.T. 441 (Tri. – Mumbai)
3. Shri Prakash Kumar Singh, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have considered the submissions made by both the sides and perused the record. We find that Adjudicating Authority has denied the classification of service under Works Contract solely on the basis that appellant have not produced any evidence to show that the appellant have been paying VAT/ Sales Tax on the execution of contract. Accordingly, it was construed that in the absence of any evidence of VAT payment, the classification under Works Contract was denied and consequently the demand of service tax was confirmed. From perusal of VAT Form 201 submitted before us, it is clear that the appellant have been paying VAT to the State Government in respect of works contract. However, the Adjudicating Authority has not considered the same in proper perspective. Therefore, we are of the view that the matter needs to be remitted back to the Adjudicating Authority for passing a fresh order considering all the evidences relating to VAT and on the basis of other documents if any required. All the issues are kept open. The impugned order is set-aside and the appeal is allowed by way of remand to the Adjudicating Authority.
(Pronounced in the open court on 24.03.2023)
