The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) remanded matter in the question regarding work of site formation and erection of windmills not ‘commercial and industrial construction service’.
The Appellant M/s. Raviraj Constructions are engaged in the activity of construction services. The demand for service tax under the head of “commercial or industrial construction” has been raised by the Department vide Show Cause Notice. Thereafter the Additional Commissioner, confirmed the demand raised in the aforementioned Show Cause Notice.
It was contended on behalf of the appellant that the construction services were made taxable effective 10.09.2004 relying on the definition of commercial or industrial construction services as defined under section 65(25b) of the Finance Act, 1944 and draws inference from section 65 A of the Finance Act in support of the Appellants claims for classification.
The submission was also made that the department has not undertaken proper investigation towards ascertaining the type of services being performed by them and the adjudicating authority has gone beyond the allegations in show cause notice and confirmed demand under a different category.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “In the present case we are of the considered view that the main issue is with respect to classification of the services provided by the Appellant under appropriate head. The Appellant’s claim is that they have carried out the work of site formation and erection of windmills and by that reason will not fall under the category of ‘commercial and industrial construction service’.”
“However, this being a matter of fact regarding the nature of services rendered, for a final appreciation of facts of the case and to classify the services rendered by the Appellants it will only be fair that the case should go back to the original adjudicating authority who will examine the factual matrix of the case afresh. Accordingly, the matter needs to be re-considered for verification of fact related to whether the service of the Appellant is classifiable under Commercial or Industrial Construction service or otherwise” the Tribunal noted.
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