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2016 (11) TMI 700 - CESTAT HYDERABAD

2016 (11) TMI 700 - CESTAT HYDERABAD - TMI - Works contract service - modification of the stay order - power of Tribunal under statute to pass an order when there are change of circumstances - Held that: - the services carried out by the appellant during the period of dispute are indeed in the nature of works contract services. It is also seen that the nature of their work, in relation to construction of port or other port, are fully exempted from the whole of service tax leviable thereon right .....

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ry much in the nature of works contract services in relation to construction of port or other port - the said activities are fully exempted by service tax all through the period of dispute 'by virtue of series of exemption notifications - for period after 01-06-2007 the works contract services provided by appellant continue to be exempt from service tax liability in view of aforesaid exemption notifications - appeal allowed. - Appeal No.ST/27125/2013 & ST/22254/2014 - FINAL ORDER No. A/30822 to .....

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ores and report compliance on 03-11-2015 and had also directed as the amount involved in the case is on the higher side the appeals will be taken up for final decision on the same day itself. However, the appellant filed ,on 22-10.2015, this Misc. Application seeking modification of the aforesaid interim order on the ground that the issue is fully covered by the case law as well as by Notification. 3. On behalf of appellant Shri. C. Manickam submitted that the period involved is from August 2005 .....

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ant have been held to be in the nature of works contract services. This being the case by virtue of Supreme court judgment in the case of Larsen & Toubro case 2015 (39) STR 913 (S.C), the works contract cannot be vivisected and subjected to tax prior to 01-06-2007. He further submitted that throughout the period of dispute services provided in relation to execution of works contract for construction of pod or other port was exempt from service tax, vide Notifications No. 16/2005-ST dated 07- .....

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l Consultant appointed in this matter could not come today. This Bench then took note of the fact that on the previous posting ie; on 26-08-2016 also, the hearing had been adjourned on request of department submitting that the very same Spl. Consultant was not available on that day. We therefore were not inclined to grant yet another adjournment of the matter especially as the earlier Bench, while passing the stay order had explicitly ordered that the appeal itself has to be listed for final hea .....

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tay also on the ground that Tribunal has no powers for modification. The department submitted written submissions on the same day. 7. In the written submissions dated 14-09-2016, it has been inter alia contended that considering the confirmed taxes and penalties in the case amounts to more than ₹ 309 crores , pre deposit of ₹ 10 crores ordered is very small. There is no apparent error in the impugned order. The arguments raised by appellant are part of appeal filed already, hence the .....

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erent powers for modification of the stay order passed. In cases where there are change of circumstances and the interim order needs to be consequently modified, the Tribunal is not barred from exercising its powers under the Statute. In the instant case it is not disputed that the law in relation to WCS as it stood at the time of passing of the impugned stay order had been overturned by the Hon ble Supreme Court (Larsen & Toubro case), that too within the time specified by Tribunal for comp .....

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artment that the Tribunal has no powers for hearing and deciding an application for modification of stay is mis-conceived and without legal basis and is only to be brushed aside. 10. After hearing the arguments we are convinced that the appeal itself can be taken up for disposal as ordered by the Tribunal in its Stay order dated 28-07-2015. We now proceed to analyse the issue under consideration in the appeals. 11. The appellant undertook work for Krishnapatnam Port Company Limited (KPCL) for co .....

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Contract Services, appellants would be entitled to exemption notification. In this regard it is seen that in para 88 of the order in original dated 20-02-2013, it has been held by the original authority that the activities carried out by appellant in the course of development of Krishnapatnam port are under Works Contract services. So also in the second Order in original dated 28-02-2014 adjudicating authority has held that services undertaken by appellant for KPCL in the course of development f .....

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r service, it is clear to us that it relates only to those services which are provided within the port , which in any case is what the appellants had contracted to construct. The services by the port would obviously commence after all such constructions, like that carried out by the appellant, are completed, the port is commissioned and port activities are permitted to be commenced. 13. From the above discussions we are of the considered opinion that the services carried out by the appellant dur .....

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