M. Veeraiyan, Technical Member - This is an appeal against the order of the Commissioner No. 9/2009-ST (Commr.) dt. 31/12/2009 by which total service tax demand of Rs.44,33,15,106/- relating to the period 01.01.2005 to 31.03.2009 along with interest stands confirmed and penalties under Section 76 and 78 imposed. He also confirmed demand of Rs. 4,31,40,713/- denying the credit availed/utilized irregularly.

2. After hearing both sides for a while on the stay petition, we deem it appropriate to finally dispose of the appeal and therefore we waive predeposit of dues as per the impugned and proceed to dispose of the appeal.

3. The relevant facts, in brief, are that

a.The appellants are rendering the following services;

Industrial Construction Service,

Residential Complex Construction,

Maintenance and Repairs service,

Management Consultancy Service

& Goods Transport Service.

b.The appellants have availed CENVAT credit of Rs. 3,62,94,113/- towards the excise duty on inputs and service tax on input services during the period October, 2005 to March, 2006.

c.They filed ST3 returns for the period of half year ending 31/03/2006 indicating the service tax liability as Rs. 3,62,81,061/-, the amount of credit taken by them as Rs. 3,62,94,114/- and payment of Rs. 68,46,600/- by utilizing CENVAT credit and the balance of service tax by cash.

d.Thereafter, the appellants felt that it would be advantageous to them to avail the benefit of Notifications No. 15/2004 ST dated 10.09.2004 No.1/2006-ST dt. 01/03/2006 without availing the benefit of CENVAT credit and accordingly filed revised ST3 returns for the half year ending 31/03/2006. In the revised return, they have not taken the CENVAT credit on input/input services and re-worked the tax liability.

e.The show-cause notice dt. 21/7/2008 was issued alleging that the appellants having availed CENVAT credit on input items/services, and, therefore, they are not eligible for the benefit of the Notification No. 15/2004-ST dt. 10/9/2004 and also under notification No.l/2006-St dt. 1/3/2006. Accordingly, demand was proposed relating to the period from 1/4/2005 to 31/3/2007.

f.The appellant filed reply dated 01.09.2009 contesting the demand on various grounds.

g.In adjudication of the show-cause notice dt. 21/7/2008, the Commissioner has passed the impugned order confirming the demand of service tax along with interest and imposed penalties as mentioned earlier.

4. The learned advocate for the appellant assailed the order of the Commissioner on various grounds importantly on the following and sought for remand of the matter to the Commissioner for fresh consideration.

a.The appellants have rendered services at places like Hyderabad, Delhi and Bangalore. Commissioner, Hyderabad has demanded service tax for their entire activities at different places including those at Bangalore and Delhi. In fact, the Commissioner of Service Tax, Bangalore issued a show-cause notice dt. 10/10/2008 proposing demand of service tax on the activities undertaken in his jurisdiction and confirmed a demand of service tax amounting to Rs. 2,73,57,199/- vide order No.56/2009 dt. 30/12/2009 (copy produced for record). The demand confirmed by the Commissioner of Service Tax, Bangalore related to the period December, 2005 to July, 2006. Further, the Commissioner of Service Tax, Delhi has also issued a show-cause notice C.No.DL-I/ST/R-II/SCN/IJM/S.3/201/6859 dt. 13/07/2010 demanding service tax amounting to Rs. 41,79,24,941/- relating to the period April, 2005 to September, 2009 and the same is under process of adjudication (copy of the show-cause notice produced for record).

b.In view of the above, the demand confirmed by the Commissioner, Hyderabad includes part of the demand already confirmed by the Commissioner, Bangalore. The demand confirmed by the Commissioner, Hyderabad is also overlapping to the demand proposed in the show-cause notice issued by Delhi Commissionerate. Therefore, the jurisdiction issue should be considered afresh in the l