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TMI Blog2019 (11) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts and circumstances of the present case the learned Tribunal vide impugned order is correct in not considering submissions / documents for wrong invocation of jurisdiction ? ii. Whether, in facts and circumstances of the present case the learned Tribunal is correct in holding that the Commissioner, Central Excise, Raipur had jurisdiction to initiate proceedings when the work in question was executed in the State of Orissa, Bihar and West Bengal i.e., outside the geographical limits of Raipur jurisdiction ? iii. Whether, in facts and circumstances of the present case the Appellate Tribunal vide impugned order is correct in confirming demand of service tax invoking extended period of limitation under proviso to section 73 of the Act ? iv. Whether, in facts and circumstances of the present case the Appellate Tribunal vide impugned order is correct in confirming recovery of interest U/S 75 of the Act ? v. Whether, in facts and circumstances of the present case the Appellate Tribunal vide impugned order is correct in confirming imposition of penalties U/S 76, 77 & 78 of the Act ? 2. The sequence of events is as follows : (a) The Appellant, admittedly, is engaged in prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , collection of the same from the M/s.L&T, to be routed through the Appellant will only be an empty formality. It was also added that the Appellant had not taken registration, as advised by the M/s.L&T that no such registration was necessary as they were satisfying the tax. The Appellant also contended that, if for any reason the M/s. L&T had failed to satisfy the tax, the Appellant was ready to satisfy the same. (c) After considering the reply, the adjudication proceedings were finalized by the Commissioner as per Annexure-A/6 order dated 31.01.2013, mulcting the liability upon the Appellant to the extent as ordered. Met with the situation, the Appellant preferred Annexure-A/7 appeal to the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, 'the Tribunal') along with an I.A. for interim stay. The said I.A. came to be finalized directing the Appellant to deposit full amount covered by the order under challenge; which made the Appellant to feel aggrieved, who approached this Court by filing Tax Case No. 21 of 2014. The above case was dismissed by this Court as per Annexure-A/8 order dated 19.06.2014, however, granting a further period of 'six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their side) and in the said circumstance, it was not necessary to have impleaded them in the appeal preferred by the Appellant. The said order was put to challenge by the Appellant by filing W.P.(T) No. 65 of 2017, which was disposed off by this Court as per Annexure-A/12 judgment dated 07.12.2017 as it was not pressed and that it would be without prejudice to the rights and liberties of the parties concerned. All contentions were left open, as discernible from paragraphs 4 and 5 of Annexure-A/12. It was thereafter, that the appeal was finalized by the Tribunal as per Annexure-A/1 order, which is a common order, dismissing the appeal preferred by the Appellant as well as the appeal preferred by the M/s. L&T. 3. We heard Mr. Prafull N. Bharat, the learned counsel for the Appellant as well as Mr. Maneesh Sharma, the Standing Counsel representing the Department. 4. The contentions have been moulded mainly with reference to 'four grounds' as asserted by the learned counsel during the course of hearing. Firstly, it is contended that the Adjudicating Authority is not having the territorial jurisdiction; secondly, that the work done amounts to 'manufacture' under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and that the said establishment is also in the proprietorship of the Appellant, registered at Raipur. It was further noted that the Appellant also got registered subsequently, at Raipur, after issuance of the show-cause notice. It was accordingly held that no material was produced to conclude that the Commissioner Excise, Raipur / Adjudicating Authority had no jurisdiction. We find no reason to deviate from the said finding. This is more so, since the Appellant did not have any dispute with regard to 'territorial jurisdiction' when the proceedings were initiated by the Adjudicating Authority. Though such a ground has been raised in the appeal filed before the Tribunal, the Appellant did not raise or dispute the territorial jurisdiction or authority of the Commissioner in Annexure-A/5 reply filed in response to Annexure- A/4 show-cause notice. After having submitted to the jurisdiction of the Commissioner / Adjudicating Authority without any protest, it is not correct or proper for the Appellant to take a 'U-turn', when the decision has gone against him. It is settled law that the power conferred upon the competent authority with reference to 'territorial jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity of the Appellant was a 'service' coming within the purview of relevant provisions of the Statute as mentioned in paragraphs 12 and 13. No tenable ground is raised or substantiated to take a different view. It is nothing but a 'service', the Appellant admittedly having no ownership over the materials supplied by the M/s. L&T or on the products. 8. With regard to the third point, that M/s. L&T has already discharged the tax liability, the relevant aspects have been discussed by the Tribunal in paragraphs 13 to 16. The authorities to the Department had put specific questions to the Appellant / service provider and to the M/s. L&T / service recipient when their statements were taken; copies of which have been produced as Annexures-A/2 and A/3. The relevant questions and answers given in their statements by the respective persons are reproduced herein below : Shri Ambika Prasad Shukla (Contractor) [service provider] : "Q.No.7 : When you are paying service tax in respect of M/s. M.R. Engineering Works, Raipur, why service tax was not paid by you in respect of M/s Pawan Engineering Works, Raipur even though you are providing identical services that too to a sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. The Appellant himself is aware of this fact, as the Appellant who is also a proprietor of another establishment by name M/s. M.R. Engineering Works, has registered the said establishment with the authority, which course was not pursued in respect of the present establishment i.e. M/s. Pawan Engineering Works. In response to the pointed question raised by the Department, the answer is that the registration was not taken, 'as advised' by the service recipient / M/s. L&T. But the answer given by the M/s. L&T in their statement, when specific question was put in this regard, was that they used to repay the tax, if at all it was claimed by the service provider and further that they had given clear instructions to all service providers to have had registration. The explanation offered by the Appellant that they had not taken registration and were not satisfying the service tax, despite the liability to satisfy the same, merely on the basis of instructions / advice stated as given by the service recipient / M/s. L&T can never be accepted as any explanation, much less, anything reasonable or satisfactory. Ignorance of law is no excuse. This being the position, the said ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes the last submission, that the Appellant has already satisfied a sum of Rs. 5.18 crores, which covers the actual amount of the assessment and that remaining question is only in respect of the 'penalty'. It is pointed out that the Appellant was actually acting bona fide, based on the instructions / advice given by the M/s. L&T (service recipient) and it was in the said circumstances, that M/s. L&T was sought to be impleaded by filing an I.A. before the Tribunal, which however was not permitted. This being the position, the course pursued by the Appellant might be considered as a reasonable cause for the failure as envisaged under Section 80 of the Finance Act, 1994, so as to exclude the Appellant from satisfying penalty (which otherwise is payable under Sections 76 or 78 of the Finance Act, 1994). The learned counsel submits that the above penalty provisions are not attracted and the Appellant might be considered for the benefit of Section 80 of the Finance Act, 1994. Though the said provision came to be deleted with effect from 14.05.2015, insofar as the Appellant is concerned, the said provision was governing the field for the period from 01.10.2006 to 15.12.2011 invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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