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2015 (11) TMI 166 - CESTAT NEW DELHI

2015 (11) TMI 166 - CESTAT NEW DELHI - TMI - Commercial or Industrial Construction service - Work contracts - Appellant neither furnished documents nor responded to the show cause notice or the summons issued - Held that:- Work contracts was not a taxable service prior to 1.6.2007, as Commercial or Industrial Construction Service defined, Section 65 (25b) of the Finance Act, 1994. At least since 1989, the law is clearly settled vide the judgment in Builders Association of India vs. UOI - [1989 ( .....

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s not been so asserted or pleaded before the adjudicating authority.

Since the appellant has wholly failed to cooperate in the adjudication proceeding by non-cooperation and thereby disabled the ld. Commissioner to properly discharge his statutory functions, to pass a well considered order of assessment and since such non-cooperation of the appellant had resulted in substantial waste of public money involved in the primary adjudication proceeding as well as the clearly avoidable expen .....

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7-10-2015 - Hon ble Mr. Justice G. Raghuram, President And Hon ble Mr. C.J. Mathew, Technical Member For the Appellant : Shri B. L. Narasimhan, Advocate For the Respondent : Shri Amresh Jain, A.R. ORDER Per Justice G. Raghuram Heard Shri B.L. Narasimhan, ld. Advocate for the appellant and Shri Amresh Jain, ld. A.R. for Respondent/Revenue. 2. The appeal is directed against the adjudication order dated 31.12.2013 passed by the ld. Commissioner ,Service Tax (Adjudication), New Delhi. The impugned o .....

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on by the Anti-Evasion Branch. The appellant failed to cooperate either during the process of investigation or during adjudication. Appellant neither furnished documents nor responded to the show cause notice or the summons issued. In the circumstances, Revenue obtained information from Income Tax Authorities and verified balance sheet and income tax returns of the noticee for the periods 2004-05 to 2007-08. Balance sheets for the subsequent period under consideration could not however be obtain .....

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he singular response of the appellant during the entirety of the adjudication proceedings, was by a letter dated 16.4.2011, furnished in response to a call for information addressed by Revenue. In this letter, the appellant merely asserted that it was working as an interior decorator; it was proprietary concern on a sub-contract since 2007; appellant had not remitted any service tax since it was working as a sub-contractor; that as per the master Circular No.96/7/2007 dated 23.8.2007 a sub-contr .....

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and was confirmed by the impugned order. 6. Shri B.L. Narasimhan, ld. Advocate for the appellant states that the appellant had provided construction services exclusively under work contracts for the entire period in issue; that works contract is not taxable prior to 1.6.2007 in view of the Judgment of the Supreme Court in C.S.T. vs. Larsen & Toubro 2015 (39) STR 913; that the actual consideration received for rendition of works contract service for the period subsequent to 1.6.2007 (admitted .....

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peculiar facts and circumstances, this Tribunal be pleased to take a lenient view and may be pleased to remit the matter to the adjudicating authority for a de novo consideration and determination of all relevant facts applicable principles of the law, on just terms as to the costs as deemed fit. as extant. 7. We find absolutely no justification for the appellant adopting an attitude of total non-cooperation with the adjudication proceedings. The conduct of the appellant in stonewalling the adju .....

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distinctly taxable aspects, namely rendition of service and deemed transfer of goods involved in execution of the works; service tax is leviable only on those aspects amounting to rendition of service and excluding deemed sale of goods. Whether the appellant had in fact provided the works contract service is of course a question of fact. It is so asserted in the appeal for the first time but has not been so asserted or pleaded before the adjudicating authority. 9. In the totality of the facts an .....

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ss adopted no rational basis for assuming that the turnover increase in each year subsequent to 2006-07 would be 100%. We notice that the turnover of the appellant during 2004-05 (though on non- taxable rendition of service) was ₹ 3,16,29,092/-; in 2005-06, the turnover was ₹ 3,91,73,437/- and in 2006-07 was ₹ 8,09,50,588/-. Even according to the ld. Commissioner, the turnover increase in 2005-06 was 23.8% while it was 106%, only in 2006-07. Assumption that the increase in turn .....

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