w w w . L a w y e r S e r v i c e s . i n



Continental Constructions Ltd V/S Commr. of S.T. (Adj.), New Delhi


Company & Directors' Information:- CONTINENTAL INDIA PRIVATE LIMITED [Active] CIN = U25203HR2006PTC069888

Company & Directors' Information:- CONTINENTAL INDIA PRIVATE LIMITED [Active] CIN = U25203DL2006PTC153993

Company & Directors' Information:- C & C CONSTRUCTIONS LIMITED [Active] CIN = L45201DL1996PLC080401

Company & Directors' Information:- TO THE NEW PRIVATE LIMITED [Active] CIN = U72900DL2006PTC235208

Company & Directors' Information:- S T CONSTRUCTIONS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC127181

Company & Directors' Information:- M CONSTRUCTIONS PRIVATE LIMITED [Active] CIN = U45200MH2004PTC148776

Company & Directors' Information:- A N CONSTRUCTIONS PRIVATE LIMITED [Active] CIN = U45400UP2008PTC035171

Company & Directors' Information:- CONSTRUCTIONS CO OF INDIA PRIVATE LIMITED [Strike Off] CIN = U29248UP1946PTC001471

Company & Directors' Information:- S. CONSTRUCTIONS PRIVATE LIMITED [Strike Off] CIN = U70101MH2003PTC139538

Company & Directors' Information:- A.T. CONSTRUCTIONS PRIVATE LIMITED [Strike Off] CIN = U45201UP1990PTC011951

    Final Order Nos. ST/A/50440-50441/2018-CU(DB) in Appeal Nos. ST/51842 & 52354/2014-DB

    Decided On, 30 January 2018

    At, Customs Excise and Service Tax Appellate Tribunal Principal Bench New Delhi

    By, THE HONORABLE JUSTICE: S.K. MOHANTY
    By, MEMBER AND THE HONORABLE JUSTICE: V. PADMANABHAN
    By, MEMBER

    For Petitioner: Subodh Gupta, Advocate And For Respondents: P. Juneja, A.R.



Judgment Text


1. The present cross appeals are both directed against the Order-in-Original No. 16/2013-14, dated 24-12-2013. The assessee is engaged in providing construction services. The dispute in the present case is with reference to certain projects executed by the assessee as follows:-

i. Maneri Bhali Hydro-Electric Project for the following work:-

Construction of Barrage, Intake, Sedimentation Chamber, Fore Bay, Flushing Conduit, etc. and Head Race Tunnel (up to 4.5 KMs.) from Joshiyara End.

ii. Similarly the contract agreement with Himachal Pradesh Electricity Board describes the scope of the work allotted to the noticee as under:

LARJI HYDRO-ELECTRIC PROJECT (126 MW), DISTRICT MANDI (H.P.)

Whereas the Himachal Pradesh State Electricity Board invited tenders for "Construction of 2075 m long, 10.5 m dia modified horse show shaped Highway (NH-21) Tunnel as extension of existing Highway Tunnel from RD 646.30 m including 125 m long, 7.25 m x 6.5 m D-shaped construction Adit of Larji HEP".

In the show cause notice issued by the Revenue, it was proposed to charge Service Tax in respect of the activities carried out in the above two projects under the category of "Commercial and Industrial Construction Services". It was represented by the assessee that in such projects the activities carried out by the appellant are towards construction of dam in the case of Maneri Bhali Hydro-Electric Project and construction of Highway Tunnel in the case of the project for Himachal Pradesh Electricity Board. Accordingly, the adjudicating authority dropped the demand for Service Tax by taking the view that it is covered under the exclusion clause providing under the "Commercial and Industrial Construction Service". Revenue has filed the appeal against this.

2. The other issue in the impugned order is with reference to certain amounts recorded by the assessee in their books of account annexed under "miscellaneous receipts". The nature of amount booked under "miscellaneous receipts" included sale of scrap, sale of obsolete material, assets, sundry credit balances of parties written off, sale of aggregate, various, etc. Revenue was of the view that such amounts, in the absence of the specific documentary evidence, are to be considered as received in connection with provision of Business Support Services. The Service Tax demand was made on such amount and against such demand of Service Tax, the assessee is in appeal before us. Both the appeals are being disposed of through this common order.

3. With the above background we heard Shri Subodh Gupta, Ld. Advocate appearing for the appellant and Shri P. Juneja, Ld. DR appearing for the Revenue.

4. First we consider the issues raised in the appeal filed by Revenue. In the grounds of appeal Revenue has referred to para 13.4 of the Board's Circular No. 80/10/2004 ST, dated 17-9-2004 in which certain clarifications were given in connection with the exclusion clause within the Commercial and Industrial Construction (CIC). Revenue is of the view that such exclusion under CIC is available only to dams and tunnels independently and not applicable when they are constructed as part of a hydroelectric project.

From the description of work executed by the assessee in the Maneri Bhali Hydro-Electric Project, we note that it is in connection with construction of barrage, intake sedimentation chamber, etc. There is no doubt that such work has been carried out as part of the hydroelectric project and construction of dam therefor. So, we find no infirmity in the view taken by the adjudicating authority that these activities are in connection with the construction of the dam and hence excluded from the purview of Commercial or Industrial Construction".

5. With reference to the work executed by the assessee for Himachal Pradesh Electricity Board, such work involves construction of highway tunnel which is extension of existing highway tunnel. Construction of tunnel is specifically excluded from the purview of "Commercial and Industrial Construction and we uphold the finding of the adjudicating authority in this regard to the effect that no Service Tax is liable for such construction activities.

In view of above Revenue's appeal is dismissed.

6. Next we turn to the issue regarding charging of Service Tax under the category "Business Support Services". Such Service Tax demand has been raised in connection to certain amounts booked under "miscellaneous receipts". It has been explained by the assessee that such "miscellaneous receipts" include various receipts of casual and non-recurring amounts and can, by no stretch of imagination, be considered as proceeds received for "Business Support Services". The Ld. Counsel for the assessee has also emphasized during arguments that sample documents evidencing the nature of the receipts were placed before the adjudicating authority for its consideration but he fairly admits that the entire bunch of documents were not made available before the adjudicating authority. He consequently confirmed the demand by recording that no documentary evidence was produced by the assessee. He further submitted that assessee is in a position to provide copies of all the documents evidencing the fact that such miscellaneous receipts do not pertain to receipt of any consideration towards provision of any service.

7. In view

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of the above arguments we find that the matter needs to be remanded back to the adjudicating authority. Accordingly, we set aside the demand raised in the impugned order and remand the matter to the adjudicating authority to reconsider this matter after perusing the copies of documents which the assessee is in a position to submit. To facilitate such production of documents an effective hearing may be given to the assessee before passing order in de novo proceedings. In view of the above discussion the appeal filed by Revenue is dismissed and the appeal filed by the assessee is allowed by way of remand.
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