Palimar Infracon (P. ) Ltd. VS Commissioner of Central Excise, Mangalore

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, BANGALORE
P.G. CHACKO, M. VEERAIYAN, JJ.
Palimar Infracon (P.) Ltd. -Appellant
Versus
Commissioner of Central Excise, Mangalore -Respondent
Stay Order No. 668/2012 Misc. Order No. 284/2012 Application Nos. ST/Stay/1203/2011,ST/COD/195/2011 Appeal No. ST/1896/2011
Decided On : 19-04-2012

Advocates Appeared:
Rajesh Kumar,N. Jagdish

ORDER

P.G. Chacko, Judicial Member - There is a delay of 12 days in the filing of the appeal, which is sought to be condoned. After hearing both sides, we have found satisfactory explanation of the delay and hence allow the COD application.

2. The stay application filed by the appellant seeks waiver and stay in respect of an amount of Rs. 4,38,237/- demanded as service tax and education cess for the period from May, 2006 to June, 2008 as also the penalties imposed on the appellant. The appellant paid an amount of Rs. 1,24,297/- and same stands appropriated. A major part of the demand is an amount of Rs. 2,99,976/- demanded towards service tax and education cess under the category of 'commercial or industrial construction service' for the period from April to June, 2007. After hearing both sides, we find that the appellant claims to have undertaken a road construction for M/s. Nagarjuna Power Corporation Ltd. and they are contending that this work is not exigible to service tax on account of exclusion of roads from the ambit of 'commercial or industrial construction service'. The learned consultant submits that a coordinate Bench of this Tribunal in a similar case held in favour of the assessee vide CST v. Shilpa Constructions (P.) Ltd. [2011] 33 STT 468. He has also relied on paragraphs 14.4 and 14.6 of C.B.E. & C.'s Circular F. No. B1/6/2005-TRU, dated 27-7-2005. The Board clarified to the effect that if the construction of road is integral part of a composite contract comprising several pieces of construction works, the value of road construction should also be included in the gross taxable value. In the instant case, it has been claimed that the appellant undertook only construction of road along with allied works for the benefit of the service recipient. On a perusal of the work order available on record, we have found substance in this claim. If that be so, prima facie, a major part of the impugned demand is not sustainable. In this view, we grant waiver of pre-deposit and stay of recovery in respect of the adjudged dues.

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