TMI Blog2019 (12) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... into a regular appeal under the provisions of Section 35G of the Act. Matter remanded to the learned Tribunal with a request to pass fresh orders in accordance with law - appeal allowed by way of remand. - C.M.A. No.2032 of 2019 - - - Dated:- 6-12-2019 - THE HON BLE DR.JUSTICE VINEET KOTHARI AND THE HON BLE MR.JUSTICE R.SURESH KUMAR For Appellant: Mr. Joseph Prabakar For Respondent: Mr. K. Ravi JUDGEMENT DR. VINEET KOTHARI, J. The assesse M/s.GE T D India Limited (formerly known as M/s.Areva T D Limited) has filed this appeal aggrieved by the order dated 01.06.2018, by which the learned Tribunal remanded the case to the assessing authority with regard to applying of Works Contract Composition Scheme to the case of the Assessee, who is engaged in the works contract services of Supply and Installation of Electrical Equipments. 2. The relevant portion of the order of the learned Tribunal is given below for ready reference 7.3. Now we turn to the claim of appellant for the benefit of concessional rate of duty under Works Contract (Composition Scheme). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Aggrieved by the said order, the Assessee filed a writ petition before this Court, which was later on converted into the present C.M.A.No.2032 of 2019. Learned counsel for the Assessee Mr.Joseph Prabakar submitted that in order to avail the benefit of the Works Contract Composition Scheme, there was no prescribed format of indicating the option in the same, but the Assessee in the present case had paid only 2% of service tax as per the said Composition Scheme and therefore, the relief of the said Composition Scheme could not be denied to the Assessee in the present case. But, since the learned Tribunal, in the order dated 01.06.2018 had remanded the case back to the assessing authority with the observation in Paragraph 7.3 quoted above that the appellant will be entitled to assessment in Works Contract services for such contracts and entitled to payment of service tax only on the value of the services portion, therefore, in fact Assessee will have to face regular assessment proceedings under the said remand order. He further submitted that the view of the Tribunal on the said question of availing the Works Contract Composition scheme was beyond pale of doubt and that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax at the composition rate in the returns filed by them, is enough indication to show that they have opted for payment under the Works Contract Composition Scheme. Reliance is placed on the case of Bridge and Roof Company (supra), wherein it was held as under:- After hearing both sides, duly represented by Shri Bipin Garg, learned AR appearing for the Revenue, we find that the Revenue s main objection is absence of option exercised by the appellant before they started paying duty under the works contract. However, we find that as the appellant applied for registration under works contract, the same amount would amount to exercise of option in the absence of any format laid in the said rule for exercising said option. Similarly, we find favour in the appellant s contention that the restriction under Rule 3(3) of the said rules is for availing credit in respect of input and not input service. We have also seen Board s Circular and the judgment of Nagarjuna Construction (supra) relied upon by Revenue. The facts there are different because there the situations were that a single and same contract was in existence before 01-06-2007 and after 01-06-2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication Application also came to be dismissed by the same learned Member on the ground that the said decision of the learned Tribunal ought to have brought to the notice of the learned Member at Chennai when the order dated 01.06.2018 was delivered and that since it was not brought to the notice of the Tribunal at that time, the Rectification Application came to be rejected. 9. Having heard the learned counsel for the parties and upon perusal of the sequence of the events and various orders passed by the learned Tribunal, we are constrained, with great respects to the members of the learned Tribunal, that a bonafide lapse, if at all, it can be called to be one, on the part of the learned counsel for the Assessee to have brought to the notice of the learned Tribunal at Chennai, the order which the same Honourable Member passed at the Principal Bench at Delhi on 06.03.2018, ought not to have been put against the Assessee as a reason for rejecting the Rectification Application, more so, when the order of the Principal Bench at Delhi was authored by the same Honourable Member, who refused to apply the same to the case of the present Assessee without any distinction of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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