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2016 (7) TMI 1031 - CESTAT NEW DELHI

2016 (7) TMI 1031 - CESTAT NEW DELHI - TMI - Waiver of pre-deposit - Commercial or Industrial Construction Service (CICS) - Manpower Recruitment or Supply Agency Service - Maintenance and power backup expenses recovered from the clients in the form of fixed charges, operator charges, fuel consumption /running expenses. - Admissibility of Cenvat Credit - Held that:- Having regarding to the foregoing discussion and keeping in mind that the appellant has also raised the issue of time bar, though th .....

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e-For Appellant Mr. Amresh Jain, DR-For Respondent ORDER Stay application has been filed against the Order-in-Original No.58-59/ST/SRB/2014, dated 26.03.2014 in terms of which service tax demands of ₹ 4,70,66,218/- in respect of Show Cause Notice dated 24.04.2012 and ₹ 2,29,16,563/- in respect of Show Cause Notice dated 19.12.2012 were confirmed along with interest and penalties. The break-up of these demands as submitted by the ld. advocate for the appellant is as under:- Sl. No. Is .....

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pply Agency Service Alleged providing skilled/ semi-skilled workmen to assist the contractor in the execution of works. 68,59,938.00 46,04,367.00 3. Maintenance and power backup expenses recovered from the clients in the form of fixed charges, operator charges, fuel consumption /running expenses. 5,38,393.00 - 4. Payment of service tax for the period prior to registration through CENVAT credit not admissible. 10,61,710.00 - 5. Inadmissible CENVAT credit of common input services on account that a .....

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construction. Further, this component of demand has been confirmed under CICS, while the work was performed under Works Contract and therefore it was classifiable under Works Contract and not under CICS. Also this component of demand in respect of Show Cause Notice dated 19.12.2012 has been confirmed by resorting to best judgement assessment without any sustainable ground for best judgement assessment. The abatement of 67% has also not been given although value of goods was included. (ii) As reg .....

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t allowed, this component of demand has been paid and the interest amount (Rs.2,13,051/-) has been confirmed on the ground that it was paid late and the interest amount is mentioned at Sl. No.6 of the table above. (v) As regards inadmissible CENVAT credit on common input services on the ground that the appellant was providing taxable and exempted service, no output services have been identified which were exempted services, nor the input services which were used in the so called exempted output .....

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e also referred to Supreme Court judgement in the case of CCE, Kerala Vs. Larsen & Toubro Ltd. [2015 (39) STR 913 (SC)] to assert that the classification of services mentioned at Sl. No.1 of the table should be Works Contract service and not under CICS. 4. Per contra, Ld. Departmental Representative for Revenue argued that the appellant entered into a contract for construction, but sub-contracted the same to other sub-contractors, which used materials for construction purposes. Thus, the app .....

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rovide proper information nor did it file proper periodical returns and therefore extended period was invocable. 5. We have considered the contentions of both sides sufficiently for the purpose of this interlocutory order. Regarding the component of demand mentioned at Sl. No.1 of the table above, having regard to the nature of construction mentioned earlier and in view of CESTAT judgement in the case of Anand Construction Co. Vs. CCE, Kolhapur (supra), we are of the view that prima facie, the a .....

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r Manpower Recruitment or Supply Agency service, we find that the contract entered between the appellant and M/s. Ahluwalia Contractors India Ltd. inter alia stipulated that:- The NBCC shall provide skilled/semi-skilled workmen supervisors, masons, wiremen, plumber, etc. or any other category to assist the contractor in execution of the works at the fixed recovery rate of ₹ 18,500/- per month for each number of work force (Rupees Eighteen thousand five hundred only per month) or any higher .....

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pply of manpower, temporarily or otherwise, in any manner. And Manpower Recruitment or Supply Agency is defined in Section 65 (68) ibid to mean:- any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporary or otherwise, to any other person. It is evident that the appellant provided skilled/semi-skilled worksmen to assist the contractor in execution of the Works Contract and recovered from the contractor amount computed on pe .....

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Recruitment or Supply Agency service (at Sl. No.2 of the table above) is sustainable in principle. However, the contention of ld. advocate for the appellant that in respect of second Show Cause Notice, the best judgement assessment has been done without any legal basis and at a level much higher than the level in the corresponding previous period will be kept in mind while determining the quantum of pre-deposit. 7. Regarding demand on maintenance and power backup expenses recovered from clients .....

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