Shakti Engineers vs Commissioner Of Central Excise & ST, Surat-II

Ramesh Nair, Member (J)

This appeal is directed against the Order-in-Appeal No. CCEA-SRT-II-SSP-147-148-2013-14-U-S-85 dated 31.07.2013 passed by Commissioner (Appeals) whereby the demand of service tax was confirmed on the basis of difference found between the value declared in ST-3 returns and the data appearing in their books of accounts.

Shri Vipul Khandar, learned Chartered Accountant appearing on behalf of the appellant at the outset submits that the appellant’s activity falls under Installation and Commissioning service which is otherwise covered under Works Contract service and as per the classification of Works Contract service, no differential service tax arise. He fairly concedes that the aspect of scope of classification under Works Contract service has neither raised by appellant before the Adjudicating Authority/ Commissioner (Appeals) nor the same was considered by both the lower authorities. He submits that as per facts of the case, the appellant’s service prima-facie classifiable under Works Contract and this being the question of law, can be raised at this Tribunal stage also. He requested that the matter may be remanded for examining the whole case including the aspect of Works Contract service.

Shri Rajesh Nathan, learned Assistant Commissioner, (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He strongly objected the issue of classification under Works Contract as it is raised first time before this Tribunal, hence should not be accepted.

On careful consideration of the submissions made by both the sides and perusal of record, we find that the appellant have raised the scope of classification under Works Contract service first time before this Tribunal. Since the classification of service is a question of law which can be raised at any stage. To classify the service under Works Contract, various facts need to be examined and then only it can be ascertained that the service in question is classifiable under Works Contract thereafter it is to be seen that if any duty liability arises. Accordingly, we are of the view that matter needs to be reconsidered as a whole and possibility of classification of service under Works Contract service is depending on the facts of the case. Keeping all the issues open, the impugned order is set-aside and the appeal is allowed by way of remand to the Adjudicating Authority for passing denovo order. Since the issue pertains to the old period, 2005-06 to 2009-10, the Adjudicating Authority to pass denovo order within a period of two months from the date of this order. Cross objection also stands disposed of.