B.P. Agrawal Vs. Cce, Raipur - Court Judgment

SooperKanoon Citationsooperkanoon.com/1150439
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Principal Bench New Delhi
Decided OnJan-01-2014
Case NumberService Tax Appeal No. 1296 of 2011 (Arising Out of the Order in Appeal No. 17(ST)/RPR-I of 2011 dated 18.05.2011 passed by the Commissioner (Appeals-I) Customs and Central Excise, Raipur).
JudgeTHE HONOURABLE MS. ARCHANA WADHWA, MEMBER (JUDICIAL) THE HONOURABLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
AppellantB.P. Agrawal
RespondentCce, Raipur
Excerpt:
archana wadhwa, j. 1. after hearing both the sides we find that the demand stands confirmed against the appellant  under the category of construction service on the finding that while constructing about 100 units of residential premises in terms of the deendayal awas yojna at rampur, korba, the appellant has provided services falling under the said category. 2. it is seen from the impugned order of commissioner (appeals) that the appellant had earlier accepted their tax liability  and have in fact deposited the service tax of rs.6,96,178/-.  however, subsequently, they filed additional grounds before commissioner (appeals) contending that their construction activity does not get covered by the definition of construction service, as appearing under section 65(30)(a) inasmuch as the building constructed by them does not have more than twelve residential units.  it is seen that commissioner (appeals) took into consideration the said additional submissions made by the appellant but did not give any finding to the fact of building having twelve or more than twelve residential units. 3. ld. advocate has placed before us photographs showing that each unit was having only six residential flats and as such they are not covered by the definition. 4. ld. dr brings to our notice that the definition includes the development of the common premises as also the other facilities such as park, lift, parking space, community hall. inasmuch as the contract entered into agreement include development of such activities, they would fall under the category of construction service. 5. we find that all the above points have not been considered by the commissioner (appeals) and no final finding stands given by him on the said factual aspects.  as such we deem fit to set aside the impugned order and remand the matter back for fresh decision based upon the facts produced by the appellant.  needless to say that appellant has to be given an opportunity to plead their case.  the commissioner (appeals) would also take into consideration the decision of the tribunal in the case of macro marvel projects limited vs. commr. of service tax, chennai reported as 2008 (12) str 603 (tri., chennai), as confirmed by the honble supreme court.  limitation aspect is also left open for fresh consideration by the adjudicating authority. 6. appeal is allowed by way of remand to the commissioner (appeals).
Judgment:

Archana Wadhwa, J.

1. After hearing both the sides we find that the demand stands confirmed against the appellant  under the category of construction service on the finding that while constructing about 100 units of residential premises in terms of the Deendayal Awas Yojna at Rampur, Korba, the appellant has provided services falling under the said category.

2. It is seen from the impugned order of Commissioner (Appeals) that the appellant had earlier accepted their tax liability  and have in fact deposited the service tax of Rs.6,96,178/-.  However, subsequently, they filed additional grounds before Commissioner (Appeals) contending that their construction activity does not get covered by the definition of construction service, as appearing under Section 65(30)(a) inasmuch as the building constructed by them does not have more than twelve residential units.  It is seen that Commissioner (Appeals) took into consideration the said additional submissions made by the appellant but did not give any finding to the fact of building having twelve or more than twelve residential units.

3. Ld. Advocate has placed before us photographs showing that each unit was having only six residential flats and as such they are not covered by the definition.

4. Ld. DR brings to our notice that the definition includes the development of the common premises as also the other facilities such as park, lift, parking space, community hall. Inasmuch as the contract entered into agreement include development of such activities, they would fall under the category of construction service.

5. We find that all the above points have not been considered by the Commissioner (Appeals) and no final finding stands given by him on the said factual aspects.  As such we deem fit to set aside the impugned order and remand the matter back for fresh decision based upon the facts produced by the appellant.  Needless to say that appellant has to be given an opportunity to plead their case.  The Commissioner (Appeals) would also take into consideration the decision of the Tribunal in the case of Macro Marvel Projects Limited vs. Commr. of Service Tax, Chennai reported as 2008 (12) STR 603 (Tri., Chennai), as confirmed by the Honble Supreme Court.  Limitation aspect is also left open for fresh consideration by the adjudicating authority.

6. Appeal is allowed by way of remand to the Commissioner (Appeals).