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Joint Venture of Whessoe Oil & Gas Versus CCE, Rohtak

2015 (11) TMI 1351 - CESTAT NEW DELHI

Waiver of pre deposit - Denial of benefit of Notification No.16/2005-ST - benefit of Notification No. 16/2005 was denied only because the Jetty was for the private use of M/s RGPPL and not for common/general use of port facilities - Held that:- In the said notification no distinction is sought to be made between a public port and a private port. The adjudicating authority cannot alter the amplitude of an exemption notification. Thus, the appellant has been able to make out a good case for full w .....

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e as values of individual services are not ascertainable inasmuch as the payment is as per the milestone payment schedule attached to the sub-contract. However, we find that in the case of Alstom Projects India Ltd. (supra) it has been held that even such contracts can be vivisected. Although the ld. advocate for the appellant tried to distinguish the said judgement on the ground that in case of Alstom Projects India Ltd., it was admitted by the appellant that the milestone payments reflected th .....

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services. Thus, we are of the opinion that while the appellant has not been able to make out a good case for full waiver of pre-deposit of the demand relating thereto Consulting Engineer Service specially in the wake of the judgement in the case of Alstom Projects India Ltd. (2011 (3) TMI 538 - CESTAT, NEW DELHI ), taking an overall view a pre-deposit of ₹ 1.3 crores will meet the requirement of Section 35F of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. - Patia .....

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ed in respect of three Show Cause Notices dated 31.3.2011, 21.10.2011 and 17.10.2012 for the periods1.4.2006 to 31.3.2010, 1.4.2010 to 31.3.2011 and 1.4.2011 to 31.3.2012 respectively. In terms of the said order-in-original following demands along with interest and penalties were confirmed : Particulars of demand 2006 to 31.3.2010 2010 to 2011 2011 to 2012 Total Consulting Engineer under reverse charge INR 16,06,20,289/- INR 1,11,32,250/- INR 10,87,729/- 17,28,40,268/- CICS INR 40,99,74,546/- IN .....

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rly showed that it amounted to commercial or industrial construction service and as it was relating to construction of port it was entitled to the benefit of Notification No. 16/2005-ST. (ii) The service rendered by WOGL has been wrongly classified by the adjudicating authority under consulting engineer service and the impugned demand (of ₹ 17,28,40,268/-) has been confirmed under the reverse charge mechanism contained in Section 66A of the Finance Act, 1994. (iii) As regards, the demand o .....

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e scope of work done by WOGL included procurement of goods, construction, recommissioning and commissioning etc., that procurement of goods, construction etc. would be clearly outside the scope of Consulting Engineer Service and that after exclusion of goods the services comprised amalgamation of several services as a result of which the classification will have to be determined under the Section 66A of Finance Act, 1994, the ld. DR cited judgement in the case of Alstom Projects India Ltd. Vs. C .....

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find that the JV is the service provider for their clients i.e. M/s RGPPL, in relation to Commercial or Industrial Construction Services for the construction of Jetty facilities & LNG Terminal for M/s RGPPL which are commercial in nature and as well as for own and restricted use by M/s RGPPL. Further, such services are meant for construction of Jetty and LNG terminals for importation, off-loading and storage of LNG for running of Ratnagiri Power Projects and not for construction of port i. .....

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n the said notification no distinction is sought to be made between a public port and a private port. The adjudicating authority cannot alter the amplitude of an exemption notification. Thus, the appellant has been able to make out a good case for full waiver of pre-deposit of demand (Rs.43,74,86,035/-) relating to CICS. 5. As regards the demand relating to Consulting Engineer Service under reverse charge mechanism, prima facie the value of the goods supplied cannot be included in the value of s .....

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