Raviraj Construction vs C.C.E. & S.T.-Rajkot

Ramesh Nair, Member (J)

The brief facts of the case are that 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 dated 22.04.2014. Thereafter the Additional Commissioner, Rajkot vide Order – in – Original No. 72/ADC/MG/ 2013 dated 30.08.2013 confirmed the demand raised in the aforementioned Show Cause Notice.

Shri P.V Sheth, Learned Advocate and Shri Jatin Mehta Learned Chartered Accountant appearing on behalf of the Appellant submit that the Adjudicating Authority vide impugned order RAJ/EXCUS/000/COM/61-14-15 dated 05.01.2015 has confirmed the demand under the category of “site formation and clearance, excavation, earth moving and demolition service” while the Show Cause Notice has confirmed the demand under the head of ‘commercial or industrial construction”. He submits 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. He has taken the support of CBEC clarification vide F. No. B1/6/2005 – TRU dated 27.07.2005 that in terms of the clarification enlisted in the circular the activity of the Appellant falls within the scope of site formation services and therefore not under commercial and industrial construction services. He further submits 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.

Shri Sanjay Kumar, Learned Superintendent appearing on behalf of the Department has reiterated the findings of the impugned order.

We have heard both the sides and perused the records. 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’. We find that the Appellant was not wrong to point out that the classification suggested in the Show cause notice and impugned order are different. We note that the adjudicating authority should limit the findings to the extent provided under the allegations raised under the show cause notice. We note that no proper classification existed after introduction of negative list as on 01.07.2012 therefore the details of the services provided are integral to aid classification under appropriate head. 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.

Therefore, the impugned order is set aside. Appeal is allowed by way of remand to the Adjudicating authority, keeping all the issue open, for passing a fresh order.