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TMI Blog2015 (1) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... or discharging the onus by the Revenue. So, it is shifted on the Assessee to explain the amounts in question in respect of the rendering of services. In our considered view, none of the case laws relied by the learned advocates would be applicable to the facts and circumstances of the instant case. - Revenue had already discharged the onus lies on them to establish the services rendered by the Assessee in the premises of NLC. It has also placed consideration received by the Assessee in respect of rendering of services to NLC. These facts were disputed by the Assessees. It is well settled that the facts admitted with the supporting documents need not to be proved. The only grievance of the Assessees are that the Revenue had not given the break-up of the amounts with reference to each service. We are of the view that when the Revenue has given all these facts, then the onus lies with the Assessee to explain the service rendered by them in respect of the amount received from NLC. Assessee should be given opportunity to defend their case before the adjudicating authority - Matter remanded back - Decided partly in favour of assesse. - ST/467/12, ST/468/12, ST/469/12, ST/470/12, ST/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing demand of service tax on the basis of statements issued by M/s.NLC under the category on various services as mentioned above. The adjudicating authority confirmed the demand of tax in all cases except in Appeal No.ST/189/2010 (A.M. Manikkam) and Appeal No.ST/194/2010 (C.Vadivelu), where the Commissioner of Central Excise dropped the demand. The Assessees filed appeals against the adjudication orders before the Commissioner (Appeals). By the impugned orders, Commissioner (Appeals) set aside the adjudication orders except in Appeal No.ST/41389/2012 (SNS Constructions) where the Commissioner (Appeals) upheld the adjudication order. Hence, Revenue filed these appeals against the orders of the Commissioner (Appeals) and Commissioner of Central Excise. In appeal No.ST/41389/2013, M/s.SNS Construction filed appeal before this Tribunal. 3. Heard both sides and perused the records. 4. The Ld. Authorised Representatives on behalf of the Revenue submit that the adjudicating authority in some appeals confirmed the demand of tax and waived penalty under Section 80 of the Finance Act, 1994. In most of the cases, the Assessee paid tax partly and the amounts were appropriated by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws. The relevant portion of the written submissions of Shri V. Ravindran, Advocate are produced below:- (a) The main core activity of NLC is Lignite Excavation and power generation using lignite excavated. NLC is having lignite mining units named as Mine I, Mine II, Mine IA and Barsingsar Mine. NLC is generating power in its Thermal Power Station I, Thermal Power Station -II and in Thermal Power Station I Expansion. All the southern states are beneficiaries of this power generation project. (b) The various contractors engaged by NLC, including the Respondents herein, are engaged in the associated activities to the above said core activities of NLC. The nature of activities carried out by the Respondents are the following/ among others:- (a) Water supply-drainage for Government Hospital, Guest House in NLC (b) Drain Cutting, dumping Yard Mines, Earth Excavation, forming Bunds, Laying of inner Roads and maintenance of such roads; Fixing Safety Grills to Courtyard, School Works, Community Halls. (c) Earthwork, School Building and Painting of Government Hospital (d) Renovation Construction of Toilets in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NLC or Assessees themselves in some cases through their Balance Sheets. (g) The contention / grounds of appeal of the Department that the Assessees did not provide details/records etc. cannot be a valid ground to shift the onus of classification of the activity of Assessees under one or more of the taxable services. (h) The Department did not follow any of the legal procedures prescribed under Section 14 of Central Excise Act, 1944 [Summon procedure to collect information] read with Section 83 of the Finance Act, 1994 or under Section 72 of the Finance Act, 1994 [Best Judgement assessment procedure], in any of the cases covered by the present batch of appeals. No specific investigation was carried out or enquiries made with NLC authorities, by the Department in any of the cases in terms of the above provisions. 5.1 Shri J. Shankarraman, Advocate reiterates the submissions of Ld. Advocate Shri M. Ravindran. He further submits as under:- (a) In the present cases, the Assessees have entered in to different contracts for rendering various services with M/s Neyveli Lignite Corporation Ltd. Each and every contract ought to have been examined and the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.3 Shri P.K. Parameswaran, Advocate filed written submissions and also reiterates the submission of other advocates. 6. After hearing both sides, we find that the facts of the case in all these appeals are mostly similar in nature. All the Assessees were registered with the service tax authorities under the category of (i) Management, Maintenance or Repair Services , (ii) Commercial or Industrial Construction Service , (iii) Erection, Commissioning and Installation Service and (iv) Man Power Recruitment or Supply Agency Service . The dispute relates for the period from 2003-04 to 2007-08 and only in one case the period of dispute is 2008-09. For the purpose of proper appreciation of the facts of the case, we reproduce below the relevant portion of the Show Cause Notice No. 100/2008 (ST) dt. 23.10.2008 in Appeal No.ST/467/2012 (CCE Puducherry Vs MCB and) as under :- M/s.MCV Co., (hereinafter referred to as 'Assessee1], D-9, Rabindranath Tagore Salai, Neyveli 607 803 are providing certain taxable services as detailed in the Annexure to M/s. Neyveli Lignite Corporation, Neyveli (hereinafter referred to as M/s.NLC). It is seen that during the period from 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-04 to 2007-08 (Copies of the statement showing the payment details by various units of NLC are annexed.) 4. M/s.MCV Co. have rendered the taxable services and received the payments for the services rendered by them as per the contract agreements entered between them and the M/s.NLC authorities. Based on the payment details furnished by M/s.NLC, the total amount of Service Tax payable by them has been indicated in the Annexure. 7. The Additional Commissioner of Central Excise confirmed the demand of tax of ₹ 42,31,623/- and appropriated the amount of service tax of ₹ 6,33,839/- against the above SCN by Order-in-Original No.79/2009-(ST) dt. 18.12.2009. The findings of the adjudicating authority is reproduced below :- 4. I have carefully gone through the available case records and oral submissions. I see that there is no doubt that M/s.MCV Co. had rendered services to M/s.NLC and the fact has been substantiated by the records of payment made by M/s.NLC to the noticee. It is seen that though the Noticee had registered themselves as a Service Provider with the Department on 27.03.2006 they had not been discharging their Service Tax liability properly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the appellant are providing taxable services and received payments for such services and therefore entire amount received is liable to service tax as could be seen from the impugned SCN. 5.5 I find that in the instant case the impugned Order-in-Original does not contain the details like the category of services under which the service tax liability falls under activities carried out by the appellant and whether such activities could be classified under specific categories of services and applicability of relevant provisions to the said category. Hence 1 hold that the above case laws are applicable to the instant case. 6.1 Further these services that were levied to service tax by Finance Act, have undergone changes in nomenclature for subsequent years under Finance Act, and it is not free from doubt the activities during the period starting from 2003-04 carried out in different point of time by the appellant would fall under respective category of service and the issue would require clarity to arrive at what should be taxable value. Because of the doubt in the mind of the department the entire amount paid by the appellant to M/s.NLC during the period 2003- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case, we find that the demand of service tax was raised on the basis of statements of the NLC. There is no dispute that the Assessees rendered various services at the premises of NLC and received the amount as per the statement of NLC. The dispute relates to that the Revenue had not specifically mentioned the portion of the amount received by the Assessees from M/s.NLC for rendering particular service. Shri M. Rammohan Rao, Deputy Commissioner (A.R) heavily relied on the decision of the Tribunal in the case of Ranjeev Alloys Ltd. Vs CCE Chandigarh - 2009 (236) ELT 124 (Tri.-Del). The said case is related to denial of cenvat credit availed on fake invoices and the Assessee failed to prove receipt and use of the inputs in the manufacture of final product. In that case, the Tribunal held that the Revenue placed the evidence that the inputs claimed to have been received by the Assessees and the vehicles numbers shown in the invoices are light motor vehicles, incapable of carrying large quantities of iron and steel items being fake and fictitious, the onus is shifted to the Assessee to prove that the goods were duly received by them and used in the manufacture of iron and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the SCN. There is no material that the respondents were parties to the arrangement. (ii) In the case of Securipax India India Pvt. Ltd. Vs Collector of Central Excise - 2014 (299) ELT 417), the issue involved is whether the Deputy Commissioner after keeping the application with him over one year, returning the same on 19.3.2002, was justified in issuing a show cause notice dt. 8.4.2002 denying the credit only on the procedural ground of lack of permission from the Commissioner without on merits holding that the appellants are in any way disentitled to take credit. (iii) In the case of Commissioner of Central Excise, Cochin Vs Chirakkadavu Rubber Latex Works - 2002 (140) ELT 87 (Tri.-Bang.), the Tribunal dismissed the Revenue's appeal. In that case, the Tribunal held that there was no evidence on record to conclude that processing undertaken on latex at the respondent's premises resulted into any increase in its bonding strength. (iv) In the case of Metal Forgings Vs Union of India - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under fiscal statute while passing order, bringing some one under tax net, is required to render specific finding as to the liability the demand cannot be raised on surmises and conjectures. It has been observed that the department has to necessarily examine the aspect as to whether provisions of the Finance Act, 1994 are attracted to the case of petitioners vis-a-vis the definition of stage carriage and tour vehicle as contained in the Motor Vehicles Act, 1988. The Hon'ble Madras High Court had granted liberty to the department to issue fresh show cause notice in the light of the observations made in that order. (ix) In the case of Union of India and Others Vs Madhumilan Syntex Pvt. Ltd. - 1988 (35) ELT 349 (SC), the Hon'ble Supreme Court held that Section 11A of the Central Excise Act, 1944 clearly provides that prior show cause notice must be issued to the person against whom any demand on the ground of short levy or non-levy of payment of excise duty is proposed to be made. Therefore, the post-facto show cause notice cannot be regarded as adequate in law. (x) In the case of United Telecoms Ltd. Vs CST Hyderabad - 2011-TIOL-56-CESTAT-BANG, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said decision is reproduced below :- 19. It was submitted on behalf of the appellant that wrong description of particulars of the vehicle per se cannot be at ground to deny Modvat/Cenvat credit. It was also submitted that the mis-description could be result of clerical error. It was also submitted that the onus lay on the Department to prove that the goods were not actually received by the appellant. It was submitted that there is no evidence to suggest that the goods were diverted to any other destination and used elsewhere. These submissions do not cut any ice. We are of the view that onus initially lies on the Department but having established that the vehicles in question were incapable of transporting large quantities of iron and steel items - as admitted by all concerned, the movement of goods from Mandigobindgarh stock-yard of TISCO being fake and fictitious, - an allegation duly made known to appellant by the show cause notice read with Annexure-I thereto, the onus shifted onto the appellant to prove that the goods were duly received by them and used in the manufacture of iron and steel items. We are satisfied that the appellant utterly failed to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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