2018 (12) TMI 1183 – CESTAT CHENNAI – TMI – Site formation and clearance services – Sub-contract – the main contractor has discharged the service tax liability entirely – period from 16.6.2005 to December 2008 – Held that:- All the aspects have not been considered – there are certain discrepancies to the quantification which needs to be rectified by the clarifications that has to be produced by the appellants – the matter requires to be remanded to the adjudicating authority – appeal allowed by way of remand. – ST/Misc./41704/2017 and ST/639/2011 – Final Order No. 43140/2018 – Dated:- 17-12-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri M.A. Mudimannan, Advocate for the Appellant Shri K. Veerabhadra Reddy, ADC (AR) for the Respondent ORDER Per Bench The appellant is a proprietary concern engaged in providing site formation services which are in the nature of leveling the ground and excavation of earth with the help of excavators
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ing service tax along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, short-payment of service tax on site formation services and also disallowed the abatement availed by the appellant under Notification No. 1/2006. Penalty was also imposed on the appellant. Aggrieved by such order, the appellant is now before the Tribunal. 2. On behalf of the appellant, ld. counsel Shri M.A. Mudimannan submitted that the site formation services were rendered by the appellant as a sub-contractor and since the main contractor has discharged the service tax on the very same activities (contracts), the appellant is not liable to pay service tax under this category. With regard to the wrong availment of 67% abatement as per Notification No.15/2004 (1/2006), the ld. counsel fairly conceded that the activity does not fall under works contract service and the appellant on the wrong belief that site formation services are in the nature of wo
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been constructed within the SEZ area is used as common / public roads and therefore is eligible for this benefit. He furnished the calculation with regard to demand raised as per the impugned order as well as in the show cause notice and argued that there are errors in the quantification and the appellant would be able to clarify these if given a chance by remanding the matter to the adjudicating authority. 3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. Countering the argument of the ld. counsel for the appellant regarding the discharge of service tax liability by the main contractor, it is submitted by the ld. AR that the appellant has not produced any proof that the main contractor has discharged the service tax. Regarding the availment of abatement, he submitted that the appellants have deliberately availed the abatement to which they are not entitled and therefore it is a clear violation of provisions of law. The contention of the appellant th
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on activity with regard to site formation or construction of roads are rendered within SEZ area has to be looked into by the adjudicating authority. The appellant has requested for further chance to furnish documents with regard to the discharge of service tax by the main contractor as well as the construction activities done within the SEZ area. For these reasons, we find that the matter requires to be remanded to the adjudicating authority. The demand with respect of wrong availment of abatement also can be looked into afresh by the adjudicating authority who shall consider the issue of penalty on this score also. 6. With the above directions, the impugned order is entirely set aside and the appeal is remanded to the adjudicating authority to consider the issues afresh. 7. The application filed by Revenue for change of cause title is allowed. (Operative portion of the order was pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanag
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