TaxTMI 
TaxTMI 
2015 (1) TMI 90
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....ST/320/12, ST/321/12 Pradip Kumar Das and R Periasami, JJ. For the Appellant : P K Parameswaran, V Ravindran, J. Shankarraman, V.S. Manoj, Shri M Rammohan Rao, DC (AR) For the Respondent : Shri P Arul, Superintendent (AR) JUDGEMENT Per: P K Das: 1. Common issue is involved in these appeals and therefore, all are taken up together for disposal. 2. After hearing both the sides at length, we find that all these appeals may be decided at the stage of stay petition hearing. Hence after disposing the stay applications, we proceed to take up the appeals for hearing and disposal. 3. The relevant facts of the case, in brief, are that the Central Excise Officers during enquiry found that all the Assessees herein, are the contractors carried out various activities forM/s. Neyveli Lignite Corporation Ltd., (NLC), a Government of India Undertaking. It was found that the activities undertaken by the Assessees would come within the purview of the service tax under the category of "Management, Maintenance or Repair Services", "Commercial or Industrial Construction Service", "Erection, Commissioning and Installation Service" and "Man Power Recruitment or Supply Agency Servic....
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....he category of MMR, MRSAS & CICS on 11/03/2006. But they are liable for payment of service tax for the period prior to the Registration also, as these services are taxable with effect from 01/07/2003-MMR, 07/07/1997-MRSAS & 10/09/2014-CICS and they rendered these services to NLC prior to their registration with department. (b) As there is no different rate of tax for different services, unlike Central Excise or Customs, which may vary with reference to classification/ category, the differentiation or non-furnishing of break-up of taxable value of particular services rendered by the Assessees, would in no way affect/jeopardise the interest of the Assessees and vitiate the SCN adjudication proceedings. Admittedly, the Assessees rendered the taxable services to M/s. NLC. (c) Summons dt. 23/07/2008 to appear on 31/07/2008 was issued to Shri A.M. Manickam. He appeared on 31/07/2008 and sought time till 11/08/2008 to furnish the details of taxable services rendered and their value. But till the issue of SCN and its adjudication, he has not furnished the details of taxable services rend....
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.... Horticulture, Lawn Gardens, Up-keeping Watch& Ward Section Office & Stores, Ancillary mining activities, Lawns & Gardens (j) Pontoon Shifting, Pump laying, Cleaning of Drills, (k) Loading, transporting scrap civil works in ash bund, lathe pump house, street lights, electrical work in canteen, removal of fly ash. (I) Wiring in Mine 1,1 A entrance painting transformers, switch gears. Lighting ventilation. (m) Water Supply Works (n) Back feeding arrangements, AMC Water Treatment Plant rewinding of Motors. (o) New approach ramp, CWC Hardening of Bunds. (p) Hot vulcanizing of Wide steel cords, removal laying of wide belts, cutting rolling & transportation of wide belts (c) On classification of services, the onus on the Department is not discharged and the Revenue appeals are liable to be dismissed on this ground alone. (d) Non....
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....yveli Lignite Corporation Ltd. Each and every contract ought to have been examined and the Department should have come to a conclusion whether the service rendered is covered under the Finance Act, 1994. Such an exercise has not been carried out by the Department while issuing show cause notice. It was not even done at the time of passing the order. Some of the activities carried out by the Assessees were not covered under the Finance Act, 1994 at the relevant point of time. These aspects have not been taken into account while issuing show cause notices. In some of the cases, the payments alleged to have been received from M/s Neyveli Lignite Corporation have been wrongly mentioned. Hence there are factual errors while quantifying the demand. (b) The Department in some of the appeals has accepted that the tax liability falls under different category, if that is so then onus is on the Department to establish the various services rendered and the exact amount of demand under each service. In the absence of such an allegation in the notice, the demand is not sustainable. (c) It is relevant to point out tha....
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....re Salai, Neyveli 607 803 are providing certain taxable services as detailed in the Annexure to M/s. Neyveli Lignite Corporation, Neyveli (hereinafter referred to as M/s.NLC). It is seen that during the period from 2003-04 to 2007-08 they had been awarded different contracts under different Agreement Numbers for providing various taxable services to various units of NLC. The statements given by M/s.NLC reveals that the services rendered by the assessee fall mainly under the category of Management maintenance or Repair Services and also other services like Commercial or Industrial Construction Services, Erection Commissioning and Installation and Manpower recruitment or Supply Agency Services which are taxable services w.e.f. 1.7.2003, 10.7.2004, 16.6.2005 and 7.7.1997 respectively. It is seen that the assessee got themselves registered under the Finance Act, 1994/Service Tax Rules, 1994 only on 27.3.2006 and is in possession of Registration Certificate Number TMPAR6498MS001 under the category of Maintenance or Repair Service (MRS), Erection Commissioning and Installation (CA), Industrial or Commercial Construction Services (CCS) and Site Preparation and Cleaning Services (SPC). Ina....
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....act has been substantiated by the records of payment made by M/s.NLC to the noticee. It is seen that though the Noticee had registered themselves as a Service Provider with the Department on 27.03.2006 they had not been discharging their Service Tax liability properly. It is also clear that, if not for the Department's initiative, the tax payable by the noticeee to the Government exchequer would not have come to the notice of the Department and would have gone unpaid. From the records, it is seen that the services rendered by the Noticee fall under taxable services, namely, Management, Maintenance or Repair Services, Manpower Recruitment or Supply Service, Erection Commissioning and Installation Service and Industrial or Commercial Construction Services. While Management, Maintenance or Repair Services became a taxable service with effect from 1.7.2003 under Section 65 [105) (zzg) of Finance Act, 1994, Manpower Recruitment or Supply Service became a taxable service with effect from 7.7.1997 under Section 65 (105) (k) of Finance Act, 1994, Erection Commissioning and Installation Service became a taxable service with effect from 1.7.2003 under Section 65 (105) (zzd) and Industria....
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.... 2003-04 carried out in different point of time by the appellant would fall under respective category of service and the issue would require clarity to arrive at what should be taxable value. Because of the doubt in the mind of the department the entire amount paid by the appellant to M/s.NLC during the period 2003-04 to 2007-08 was taken as assessable value and demand was worked out on the total amount received by the appellant from M/s. NLC. The department by doing so had failed to quantify the service tax payable by the appellant and to find out whether the appellant had undervalued or under declared the value of services alleged to have been rendered by them. Therefore, the demand is not sustainable since the appellant was not under notice as to what exact category he is supposed to pay Service Tax." 9. On perusal of the above cause notice, adjudication order and Order-in-Appeal, we find that ail the Assessees were registered with the service tax authorities for rendering various services to M/s. NLC. In the written submissions of Shri M. Ravindran, Advocate, he has stated the nature of services details in the premises of NLC. The main contention of all the learned advocates....
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.... by the Assessees and the vehicles numbers shown in the invoices are light motor vehicles, incapable of carrying large quantities of iron and steel items being fake and fictitious, the onus is shifted to the Assessee to prove that the goods were duly received by them and used in the manufacture of iron and steel items. 11. In the present case, as we have already stated that the Revenue placed the statement of consideration paid by NLC to the Assessees for rendering the services at their premises. Further, there is no dispute that the Assessees rendered various taxable services at the premises of NLC. It is a fact that the Assessees had obtained service tax registration for the services rendered by them to NLC. The demand of tax is for the period prior to registration. Hence, it is the duty of the Assessees to explain the activities in respect of the amounts in question received by them from NLC as they had entered into contract with the NLC for rendering services of various nature. The learned advocates submitted that on classification of the services, the onus always lies on the department. In our opinion, while the Revenue placed the statement of NLC showing payment details re....
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.... Works - 2002 (140) ELT 87 (Tri.-Bang.), the Tribunal dismissed the Revenue's appeal. In that case, the Tribunal held that there was no evidence on record to conclude that processing undertaken on latex at the respondent's premises resulted into any increase in its bonding strength. (iv) In the case of Metal Forgings Vs Union of India - 2002 (146) ELT 241 (SC), the Hon'ble Supreme Court held that SCN is a mandatory requirement for raising demand and communication, orders, suggestions or advices from the department is not to be taken to be a show cause notice. A specific SCN communicating the amount demanded and calling upon the assessee to show cause, if he has any objection to such demand is necessary. (v) In the case of CCE Vs Shanmugananda Soapnut Works -2008 (231) ELT 25 (SC), the Hon'ble Supreme Court dismissed the appeal filed by the Revenue. In that case, it has been observed that SCN is not alleging manufacture of "Shikakai Powder" by mixing "Retta" in proportion of 10 : 1 despite investigation revealing such manufacture. The show cause notice does not contain the allegation of manufacture of "Shikkai Powder" by mi....
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....upreme Court held that Section 11A of the Central Excise Act, 1944 clearly provides that prior show cause notice must be issued to the person against whom any demand on the ground of short levy or non-levy of payment of excise duty is proposed to be made. Therefore, the post-facto show cause notice cannot be regarded as adequate in law. (x) In the case of United Telecoms Ltd. Vs CST Hyderabad - 2011-TIOL-56-CESTAT-BANG, the Tribunal observed that no demand can be confirmed against any person towards service tax unless he is put to notice as to its exact liability under the statute. The show cause notice is the basis to the proceedings and the impugned activities are to be proposed for classification under Business Auxiliary Service or Business Support Service. In the absence of proposal in the Notice, as to the liability of the assessee under the specific provisions in the Act, the demand cannot be sustained. (xi) In the case of O.P. Khinchi Vs CCE Jaipur in Service Tax Appeal No.126/2008 by final order dt. 24.5.2001, the Tribunal allowed the appeal. In that case, the authority confirmed levy of service on various services provided as pro....
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....d that the vehicles in question were incapable of transporting large quantities of iron and steel items - as admitted by all concerned, the movement of goods from Mandigobindgarh stock-yard of TISCO being fake and fictitious, - an allegation duly made known to appellant by the show cause notice read with Annexure-I thereto, the onus shifted onto the appellant to prove that the goods were duly received by them and used in the manufacture of iron and steel items. We are satisfied that the appellant utterly failed to discharge the onus...." 15. In our considered view, none of the case laws relied by the learned advocates would be applicable to the facts and circumstances of the instant case. In the present case, we have already stated that the Revenue had already discharged the onus lies on them to establish the services rendered by the Assessee in the premises of NLC. It has also placed consideration received by the Assessee in respect of rendering of services to NLC. These facts were disputed by the Assessees. It is well settled that the facts admitted with the supporting documents need not to be proved. The only grievance of the Assessees are that the Revenue had not given the b....