At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: M.V. RAVINDRAN
By, MEMBER AND THE HONORABLE JUSTICE: C. J. MATHEW
For Petitioner: Vipin Jain, Adv. and Isha Shah, Advocate And For Respondents: M.K. Sarangi, Jt. Commissioner (A.R.)
1. This appeal is directed against Order-in-Original No. 57 to 59/STC-I/SKS/12-13 dated 12.03.2013. Heard both sides and perused the records.
2. The relevant facts arise for consideration in this case is that during the period 2005 to 2012, it was alleged in the show-cause notice that the appellant had rendered various services i.e. Construction/repair or renovation of various Government buildings, laying of pipelines for various Government authorities like, Municipal Corporation of Greater Mumbai, MIDC, KDMC, Surat Municipal Corporation and Construction or renovation of Sewerage Treatment Plant or Waste Purification Plant for Municipal Corporation of the State of Gujarat. A show-cause notice has been issued to the appellant claiming the classification of the services rendered by the appellant as Management, Maintenance & Repair Service (MMRS)/ Commercial & Industrial Construction Service (CICS)/Erection, Commissioning or Installation Services (ECIS). The appellant contested the show-cause notice on merits stating that these services, which are rendered by the appellant are not covered under MMRS, CICS, ECIS or Works Contract entered by them with the Government authorities. The adjudicating authority did not agree with the contentions raised by the appellant. The adjudicating authority in the impugned order in some cases confirmed the demand under CICS whereas the show-cause notice has alleged that the classification would fall under MMRS and in some cases, he has upheld the allegation in the show-cause notice. It is noticed that the adjudicating authority has confirmed the demand raised along with interest and did not impose any penalty. The demands were confirmed against only 52 contracts covering 3 show-cause notices.
3. Learned Counsel appearing for the appellant draw our attention to the facts of the case and took us through the entire case records. It is his submission that the adjudicating authority in the impugned order at para 5 in the Discussions and Findings portion clearly recorded that the appellant would eligible for abatement of 67% of the value of the contracts on the ground that they have supplied material along with the contract. It is his submission that once this fact is admitted and recorded in favour of the appellant, then the contracts need to be considered as works contract and the issue of taxability of works contracts to be vivisected them into various other services does not arise as settled by the Apex Court in the case of Commissioner of Central Excise Vs. Larsen & Toubro Ltd. 2015 (34) STR 913. It is his submission that now the law is well settled hence, pre and post introduction of works contract services, the activity of the appellant should be covered under works contract service and cannot be vivisected for the confirmation of tax liability under various services. He also would bring to our notice that the adjudicating authority has erred in stating in the OIO that the Tribunal was in error in re-classification of the goods. It is his submission that the adjudicating authority has classified the services under other services, which were not alleged in the show-cause notice, which is not in accordance with the law as has been settled by the following decisions:-
(a) Mahakoshal Beverages Pvt. Ltd : 2014 (33) STR 616 (Kar)
(b) R.K. Construction : 2016 (41) STR 879 (Tri)
(c) Doons Caterers Vs. CST : 2016 (42) STR 447 (Tri)
(d) Glass Fibres Vs. CCE : 2010 (18) STR 726 (Tri)
(e) Nestle India Ltd. Vs. CCE : 2001 (132) ELT 134 (Tri)
(f) Neolux India Pvt. Ltd : 2001 (128) ELT 298 (Tri) affirmed by the Apex Court in 2007 (209) ELT 11 (SC).
(g) Bright Brothers : 1991 (52) ELT 385 (Tri) affirmed by Apex Court in 2000 (116) ELT A67 (SC).
(h) Toyo Engineering India Ltd : 2006 (201) ELT 513 (SC)
(i) Ballarpur Industries Ltd : 2007 (215) ELT 489 (SC)
(j) Warner Hindustan Ltd : 1999 (113) ELT 24 (SC).
4. Learned Authorized Representative (AR) on the other hand would draw our attention to the various findings recorded by the adjudicating authority in the OIO. It is his submission that the change in classification by the adjudicating authority is correct and submits that it is not shown in any of the case as has been sought to be projected by the appellant. It is his submission that only in few contracts, the adjudicating authority has changed the classification, otherwise the classification in the show-cause notice has been maintained. He would submit that the Hon'ble Tribunal in the case of Indo Hong Kong Industries (P) Ltd. 2017 (4) GSTL 257 (Tri-Del) has held that the adjudicating authority is empowered to change the classification other than as present in the show-cause notice. He would also place reliance on the decision of the Tribunal in the case of CST, New Delhi Vs. Air Charter Services Pvt. Ltd. 2017 (5) GSTL 107 (Tri-Del) for the same proposition. He would submit that the adjudicating authority's reasoning are quite clear and he reiterates the same.
5. In rejoinder, learned Counsel submits that this Bench of the Tribunal in the case of Ashish Ramesh Dasarwar Vs. CCE & Service Tax, Nagpur -in an identical set of facts has relied upon the judgment of Larsen & Toubro Ltd. (supra) and allowed the appeal of the appellant therein holding that demands cannot be raised in various services being the contract as Works Contract Service.
6. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material. Learned Counsel was correct in brining to our notice that the said findings of the adjudicating authority that the appellant is eligible for abatement of 67% of the value of the goods is in itself the acceptance of the fact that the contracts were executed with material. It is also on record that the Revenue has not contested these findings of the adjudicating authority before the Tribunal. If that be so, even when the Revenue authorities are accepting the facts that the contracts executed by the appellant are nothing but works contracts, for the period in question, entire case of the Revenue in the show-cause notice stands demolished by the Apex Court in the case of Larsen & Toubro Ltd. (supra). In the said judgment, their Lordships have very categorically laid down the law that the works contract cannot be vivisected for the confirmation of demand under various other services. On this ground itself, the entire demand confirmed by the adjudicating authority is liable to be set aside and we do so.
7. We also find strong force in the contentions raised by the learned Counsel that the adjudicating authority has confirmed the demand raised in some of the show-cause notice in other classification, which was not proposed in the show-cause notice. We find that the law is fairly settled by the judicial pronouncement on this point i.e. the adjudicating authority cannot classify services if it is not proposed in the show-cause notice. Re
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f. - Mahakoshal Beverages Pvt. Ltd. (supra) and other case as cited herein above. 8. As regards the decision relied upon by the learned AR, the case of Air Charter Services Pvt. Ltd. (supra) and Indo Hong Kong Industries (supra), we find that the said decision may not carry the case of the Revenue any further as the issue involved in that case was different inasmuch as that in those cases, the respondents and appellants therein had discharged the tax liability under different heading while in the case in hand, the appellant is disputing the tax liability under the heads as proposed in the show-cause notice. In view of the foregoing, we hold that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and appeal is allowed with consequential relief, if any.